Right to improvement process?

On 14 June 2019, the Supreme Court ruled that there is no right per se to an improvement programme for an employee in the event of malfunctioning. The Supreme Court considered that nowhere in the law is determined in which way the employer must have given an employee the opportunity to improve his functioning. What help, support and guidance may be expected in a specific case depends on the circumstances of the case. The Supreme Court has also considered that in any case the nature of the work, the level of the function, the level of education of the employee and the duration of the unsatisfactory functioning may be considered.

It should certainly not be concluded from the above that the threshold of a termination on the ground of malfunctioning is low. "Fixed becomes less fixed" was a much-heard one-liner at the introduction of the Work and Security Act (WWZ). But almost every employment lawyer will agree that this is certainly not the experience after 4 years of the WWZ. In this judgment, the Supreme Court also explicitly considered that in view of the far-reaching consequences that dissolution on the grounds of malfunctioning can have for an employee, the employer must have offered the employee a serious and realistic opportunity to improve. Here is the link to the anonymised judgement: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:HR:2019:933

If you would like advice on how to design a performance appraisal file, please do not hesitate to contact us.