Dismissal for poor performance (d-ground) in the Netherlands - checklist
Dismissal for poor performance (disfunctioneren) in the Netherlands is governed by Article 7:669(3)(d) BW - the so-called d-ground. The subdistrict court will only dissolve the employment contract on this ground if a specific set of requirements is met. Courts are rigorous in their assessment, and employers who present an inadequate dossier routinely have their dissolution request dismissed. Use this checklist before initiating proceedings.
Checklist for d-ground dismissal:
- Clear and documented performance standards: The employee must have known what was expected of them. Vague job descriptions or undocumented expectations will not suffice.
- Timely and specific feedback: The employer must have raised performance concerns with the employee in good time - not just at the end of a long period of silence.
- Written performance review documentation: Formal performance reviews, appraisals, and written communications about underperformance must be in the dossier.
- Performance improvement plan (verbeterplan): A written plan with specific, measurable, achievable targets, a realistic timescale, and agreed support measures (coaching, training, additional resources).
- Adequate opportunity to improve: The employee must have been given a genuine and reasonable opportunity to meet the improvement targets before dismissal is considered.
- No other suitable position: The employer must have assessed whether the employee can be redeployed to another role within the company (herplaatsing).
- No dismissal prohibition: Confirm the employee is not currently on sick leave, pregnant, or otherwise protected by a statutory dismissal ban.
What if the dossier is incomplete?
A subdistrict court will reject a dissolution request if the dossier does not demonstrate all of the above elements. Building the dossier takes months - start early and document every step. An employment lawyer can audit the dossier before you file and advise on any gaps that need to be filled.
The subdistrict court will dissolve the employment contract on the d-ground (Article 7:669(3)(d) BW) only if clearly documented performance concerns were communicated in good time, a realistic written improvement plan was provided with sufficient time and support, and redeployment to another suitable position (herplaatsing) was assessed and found not reasonably possible. The court may not dissolve the contract if a statutory dismissal prohibition applies (Article 7:671b(2) of the Dutch Civil Code) unless an exception under Article 7:671b(3)-(6) BW is met. If the subdistrict court dissolves the contract, it sets the termination date as the end of the applicable notice period minus the duration of the proceedings, with a minimum residual notice period of one month (Article 7:671b(9) of the Dutch Civil Code).
The subdistrict court will dissolve the employment contract on the d-ground (Article 7:669(3)(d) BW) only if clearly documented performance concerns were communicated in good time, a realistic written improvement plan was provided with sufficient time and support, and redeployment to another suitable position (herplaatsing) was assessed and found not reasonably possible. The court may not dissolve the contract if a statutory dismissal prohibition applies (Article 7:671b(2) of the Dutch Civil Code) unless an exception under Article 7:671b(3)-(6) BW is met. If the subdistrict court dissolves the contract, it sets the termination date as the end of the applicable notice period minus the duration of the proceedings, with a minimum residual notice period of one month (Article 7:671b(9) of the Dutch Civil Code).