'He's Not Performing, We Can Let Him Go, Right?' A Dutch Dismissal Myth, Busted

The Myth: "If an employee is consistently underperforming, we can build a file, give them a warning, and then dismiss them."

For managers accustomed to 'at-will' employment, this seems like standard practice. You spot a problem, you document it, and if there's no improvement, you terminate the contract. It’s a logical approach that, in the Netherlands, leads directly to a legal brick wall.

The Scenario: A Manager's Costly Assumption

Meet David, a senior manager recently transferred from the US to lead a team at 'Innovate Global BV,' the company's Amsterdam office. One of his team members, Mark, is consistently failing to meet targets. His work is late and often needs to be redone.

Drawing on his experience, David holds two stern meetings with Mark, sends follow-up emails summarizing the performance issues, and informs HR that it’s time to "start the dismissal process for cause."

He believes he has a solid case. He has a paper trail. He has clear evidence of underperformance. He is shocked when the company’s Dutch legal counsel tells him they have almost no chance of a successful dismissal. The file he carefully built is essentially useless.

The Reality: The Non-Negotiable 'Verbetertraject'

Dutch law is built on the principle of employee protection. Dismissal for underperformance is possible, but only as a final resort after the employer has made a documented, good-faith effort to help the employee improve. This mandatory process is called a verbetertraject (performance improvement plan or PIP).

A Dutch judge won't just ask, "Was the employee underperforming?" They will ask, "What did you, the employer, do to fix it?" Without a thorough and fair verbetertraject, the answer is "not enough."

The key elements of a legally sound improvement plan include:

• Clear, Written Start: Formally notifying the employee in writing that they are being placed on a PIP.
• Specific Criticisms: Detailing exactly what aspects of their performance are unsatisfactory, with concrete examples.
• Concrete Goals: Setting achievable, measurable improvement goals.
• Employer Support: Providing the necessary support, which could include training, coaching, or changes in responsibilities.
• A Realistic Timeline: Offering a reasonable period (often 3-6 months) for the employee to demonstrate improvement.
• Regular Evaluations: Scheduling and documenting regular meetings to discuss progress.

Skipping this process means a dismissal request filed with a court will almost certainly be denied, leaving the company with a demotivated employee they cannot fire and a significant legal bill.

The AI Clarity Moment

How could David have avoided this? Before taking any action, he could have asked a simple question to his AI legal copilot.

David asks LawYours.AI: "What are the legal requirements to dismiss an employee for underperformance in the Netherlands?"

LawYours.AI instantly replies: "Dismissal for underperformance in the Netherlands requires a comprehensive and documented Performance Improvement Plan (verbetertraject). Before initiating proceedings, you must demonstrate that you have:

1. Clearly communicated the performance gaps.
2. Provided the employee with a genuine opportunity to improve.
3. Offered specific support, such as training or coaching.
4. Conducted regular, documented evaluations over a reasonable period. Failure to complete these steps will likely result in a court rejecting the dismissal request. See Dutch Civil Code, Book 7, Article 669, Section 3(d) for the statutory basis."

This single query would have shifted David's entire strategy from 'building a case to fire' to 'building a plan to improve,' saving Innovate Global BV time, money, and a major legal headache.

3 Simple Rules to Remember

1. Improvement is the Goal: Dutch law sees dismissal as a last resort. Your primary legal obligation is to provide a genuine opportunity for the employee to get back on track.
2. No Formal Plan, No Case: Emails and verbal warnings are not enough. A structured, documented verbetertraject is the only foundation for a potential underperformance dismissal.
3. Doubt Means Stop: If you are unsure about the process, stop. Get clear, verifiable legal guidance before you act. A procedural mistake at the beginning can make a later dismissal impossible.

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Disclaimer: This article describes a fictionalized scenario for illustrative and educational purposes only. It is not intended to be and should not be construed as legal advice. Any resemblance to actual events, entities, or individuals is purely coincidental.