Dismissal due to dysfunction: what does your employer have to prove?

According to the law, dysfunction means that you are unfit to do your job, but not because of illness or a disability. It refers to situations where your performance structurally falls short of what can reasonably be expected of you in your job.

So the law talks about falling short of what can be expected of you. But what does this mean in concrete terms? Here are some examples where judges have indicated dysfunction:

• You cannot cope with the workload despite normal working conditions: 
• The quality of your work is structurally substandard
• You cannot keep up with necessary changes in your function
• Cooperation with colleagues is difficult because of you
• You repeatedly make the same mistakes despite guidance

Note: The above reasons must be due to you. If you perform poorly due to, for example, a poor workplace, unclear instructions or lack of training, then dismissal is not justified and you can successfully challenge it in many cases.

The Work and Social Security Act sets strict conditions for dismissal for dysfunction. Your employer must meet all five conditions below:

Your employer must prove with good evidence that you are not suitable for your job. Vague complaints or a "gut feeling" are insufficient. In short, there must be a file built up showing various moments of dysfunction.

Your dysfunction cannot be due to illness or disability.

Your employer must have informed you in a timely manner that 'things are not going well' and that you are not performing your duties as expected. 

This is very important: your employer should give you a realistic chance have given to improve your performance. This is usually included by offering you an improvement process. This improvement path must meet specific requirements.

The dysfunction may not be due to:

• Insufficient training or education that prevents you from doing your job properly
• Poor working conditions that distract you from the work you need to do, for example
• Unclear job requirements without clear objectives
• Inadequate guidance that could lead to successful employment

The burden of proof for dismissal for dysfunction lies entirely with your employer. This is an important principle in Dutch employment law. We also refer to this as: "he who demands, proves." But what exactly does your employer have to prove?

Your employer cannot just justify your dismissal with some complaints. The judiciary has some requirements in this. The following are the requirements the judiciary lays down: 

• Documented conversations: think of performance reviews, appraisals and warnings. Very important: these should be in writing
• Concrete examples: so not: "you did not inform us about X", but "because you did not inform us about X on date Y, result Z was not achieved." 
• Objective goals: There must be realistic, measurable goals that run parallel to your job requirements. Your performance is measured against these and not against other work that is not part of your job. 
• Consistent and structural: The complaints must be consistent over a long period of time. So there should not be one incident or a number of incidents in the workplace. 

Are you not meeting your employer's expectations? If so, you should be offered an improvement plan in the first instance.

This improvement process allows you as an employee to improve yourself and show that you can handle the work. Without an improvement process, your employer no chance in court. The track should include:

• Clear and concrete areas for improvement
• Realistic deadlines (usually 2 to 6 months)
• Concrete support
• Regular evaluation moments
• Written record of everything

Example where employer did not meet the above requirements:

An employer tried to dismiss an employee, but before doing so it offered an improvement programme. That improvement programme was halted, after which the employer still tried to dismiss the employee on the basis of dysfunction. However, the court ruled that there had not yet been 'a thorough improvement process in which employee was given a real opportunity to improve himself until the end. Case: ECLI:NL:RBAMS:2022:8285

This case thus shows that the court weighs heavily on a realistic timeframe for an employee to improve at work. And that even when employee stops work, dismissal by employer is not fair.

The improvement process is not only an obligation for your employer, it is also your chance to show what you have to offer. But what exactly does a good improvement process entail for you as an employee?

As a minimum, an improvement process must include, according to the law:

1. Kick-off interview with clear agreements
2. SMART goals: Specific, Measurable, Acceptable, Realistic, Time-bound
3. Support: Training, coaching or additional guidance where needed
4. Interim evaluations: At least one, but preferably several
5. Final interview with clear conclusion

During an improvement process, you are entitled to:

• Clarity On what exactly needs to improve
• Realistic deadlines to show improvement
• Good support (think training or coaching, for example)
• An honest assessment of your progress (your employer may not still steer towards dismissal)
• Written record of all appointments and evaluations

As we showed, dismissal due to dysfunction is legally complex. We conducted research on 200 court decisions throughout the Netherlands and found that in 81% of cases the court rejected the dismissal on the basis of dysfunction. We saw that rejection was often due to the following:

A number of other cases involved changed jobs. Employers then did not give employees sufficient time, guidance or training to adjust to the new job. 

An example: an administrative assistant who suddenly had to perform more complex IT tasks without adequate training.

For example case: ECLI:NL:RBLIM:223:1885

Other cases involved unclear job requirements and expectations from the employer. In those cases, the employer also could not hold the employee accountable for dysfunction. In these, the court ruled that the requirements for employee should always be clear. 

For example case: ECLI:NL:RBAMS:2022:8285

In some cases, it was also due to external circumstances. For example, it appeared that some employers:

• Had unworkable systems, which also left functioning behind
• Unrealistic targets were set, which other employees also failed to achieve
• Poor cooperation at the hands of colleagues, e.g. colleagues ignoring an employee at work

For example case: ECLI:NL:RBOVE:2022:3523

An employee who is employed for too short a time is also not at fault. In this regard, the courts state that you need sufficient time to settle in. An improvement process in the first few months is often unreasonable.

For example case: ECLI:NL:RBLIM:2024:1590

An employee was functioning less due to undiagnosed depression. The employer wanted to dismiss employee for dysfunction. Judge ruled: not dysfunction but illness. Dismissal rejected.

A sales manager needed to "achieve more turnover", but concrete targets were lacking. After two warnings, dismissal followed. The judge: without measurable targets, you cannot judge someone on results.

Is dismissal for dysfunction looming? Then follow this strategy:

• Keep all emails, letters and interview reports
• Make your own notes of conversations
• Ask for written confirmation of verbal agreements

• You are entitled to a fair improvement process
• You may ask for support
• You can object to unrealistic demands

• Consider legal advice
• Talk to a confidant
• Call in sick if necessary if the pressure becomes too much

• Often a settlement agreement a better solution than a legal battle. You may then retain the right to WW and often get higher compensation.

Dismissal for dysfunction is one of the most difficult dismissal routes for employers. Our research from 200 court decisions showed that in as many as 81% of the cases the dismissal was rejected.

The law's strict requirements on proof and improvement trajectories therefore work in your favour. Your employer must not only prove that your performance is inadequate, but also that it has given you sufficient opportunities to improve, for instance by using an improvement process.

The important thing is to know your rights and take timely action. As soon as you notice that your performance is under discussion, it is actually already time to prepare.

Document everything, ask for clarity on expectations and demand a fair improvement process.

Are you facing imminent dismissal for dysfunction? You are not alone. With years of experience, we have already successfully assisted hundreds of employees. For this, we offer a free consultation in which we discuss your situation and go through your options.