Draw up employee improvement plan

When an employee is not performing well or no longer meets the job requirements, dismissal may seem the obvious solution. However, it is not that simple. Before an employer can dismiss a poorly performing employee, the employee must be given the opportunity to improve their performance.

In order to support an employee who is not performing adequately and to help them improve their performance, an employer can start an improvement plan together with the employee. An improvement plan is aimed at seriously and actively improving the employee’s performance, with the ultimate goal of preventing dismissal and ensuring that the employee performs well again.

What is the purpose of an improvement plan?

An improvement plan is often a follow-up to a performance review or appraisal interview. If an employer is dissatisfied with an employee’s performance, they may decide to draw up this plan. Among other things, the plan describes the steps the employee must take to improve their performance. In addition, the job requirements that the employee must meet and the requirements that the employee does not meet in the employer’s view are laid down in writing. The purpose of the plan is to start a process that guides the employee in improving their performance in the event of poor performance.

When does an improvement plan offer a solution?

An improvement plan does not come out of the blue. Often, the employer has had at least one conversation with the employee concerned about their inadequate performance or underachievement. An employer would do well to ask themselves a number of questions before proceeding to draw up the plan.

Determine whether there are repeated (structural) performance problems and whether the problems can be addressed with the help of an action plan. Examples of such problems include poor sales performance, insufficient quality of work, failure to deliver work on time or failure to meet the job requirements associated with the position.

Have measures already been taken to improve the employee’s performance or functioning, and has the employee been given the opportunity to improve, for example through training, coaching or work-related adjustments? And have these steps not produced the desired result? Then an action plan for improvement may offer a solution.

Is the poor performance the result of a behavioural problem or are there other reasons for a disrupted working relationship? In that case, an improvement programme is generally not chosen, but the employer will take disciplinary measures.

Drawing up an improvement plan

An improvement plan must include various components. These requirements are set in order to give an employee a fair chance to improve. In addition, the plan serves as a guide during the improvement process. Based on the components described, the employer can assess whether there has been progress or improvement. The plan can be drawn up by the employer, the employee or by both parties together.

An improvement plan must include the following components, among others:

Improvement plan example

Everyone is free to draw up an improvement plan in their own way. However, it is of course important to clearly record the agreements made and to map out the timeline of the process. In addition, concrete agreements and objectives, reports of interim evaluations and the necessary guidance from the company must also be included in the plan. Below you will find an improvement plan example for recording agreements and tracking the progress of the improvement plan.

Duration and length of an improvement process

The duration of an improvement process can be determined freely. From a legal perspective, there is no prescribed duration. However, the period must be long enough to give the employee a realistic chance to improve their performance. The length of the process depends, among other things, on the severity and nature of the poor performance and the duration of the employment contract. If the improvement plan involves specific goals that are relatively easy to achieve, a duration of a few weeks is generally sufficient. In practice, an improvement plan lasting several months is entered into for radical improvements in performance or for mastering new tasks.

Interim evaluation

An important part of an improvement plan is scheduling evaluation moments. Evaluating an improvement process at an interim stage provides scope to adjust certain elements or goals of the plan, so that the employer and employee can work together towards the best result. An interim evaluation of an improvement process also provides insight into the current progress and state of affairs. Which specific goals have been achieved and which elements require extra attention? In general, it is recommended to schedule an interim evaluation every week or every two weeks, so that the employer can assist the employee as effectively as possible.

Final evaluation: insufficient improvement

At the end of the programme, a final evaluation takes place. The employer and employee take stock and discuss the results of the improvement plan. Have the set goals been achieved and has the improvement programme been successful? If so, the programme can be concluded. If, in the employer’s opinion, the employee has not shown sufficient improvement, the employer can investigate whether redeployment or a change of position is a possibility. Support in the form of training, guidance or coaching may be offered.

Does the final evaluation show that there has been insufficient improvement in the employee’s performance and have these conclusions been recorded in a performance file? And is there no possibility of redeployment for the employee who is performing inadequately? Then the final consequence will take effect, as discussed and recorded at the start of the process. If this leads to dismissal or the termination of the employment contract, it is advisable for an employer to seek advice from a legal specialist or employment lawyer prior to the final evaluation.

Dismissal by mutual consent

As described above, terminating an employment contract on the basis of a negatively concluded improvement plan alone is not sufficient. Employers are obliged to investigate whether it is possible to redeploy the employee within the organisation.

To substantiate this, an employer must be able to provide an overview of all current vacancies within the organisation and all positions within the company that are currently filled by employees with a fixed-term employment contract, the end date of which falls within the notice period of the employee in question. This job overview must also include the positions filled by flex workers, temporary workers, pensioners or seconded personnel.

Once the improvement file is complete and meets all the conditions set out in employment law, the employer can submit the request for termination or draw up a settlement agreement. A complete and strong file offers opportunities for terminating the employment contract by mutual consent. In this situation, the employee retains the right to unemployment benefits. An employee who is not performing well and may be dismissed retains the right to a transition payment.

Consequences of refusing an improvement programme

It is, of course, possible that an employee may disagree with the employer’s criticism of their performance. The employee may refuse an improvement programme, for example if, in the employee’s view, the assessments made by a manager are unjustified. In this case, it is important that the employer properly records the refusal and the reason for it in writing.

In a meeting, the employer asks the employee why they disagree with the criticism of their performance and substantiates the need for the programme from the company’s perspective. If the employee still refuses to cooperate with the action plan, in the most extreme case, an employer can request the termination of the employment contract from the subdistrict court. This is then considered a disrupted employment relationship.

Protecting your own interests

An employee may also refuse the improvement plan if, in his or her opinion, the employer has set unrealistic objectives. When drawing up the plan, it is therefore important that both parties stand up for their own interests, but also consider the interests of the other party. Although the employee has the right to refuse the plan, they are expected to take a constructive approach. This also applies to the employer, of course.

Frequently asked questions about: drawing up an improvement plan for an employee

What is meant by poor performance?

Poor performance means that an employee consistently fails to meet the reasonable expectations that may be set for their position. Examples include failing to achieve agreed targets, making mistakes at work or failing to cooperate sufficiently.

The employer must be able to substantiate this with concrete examples and a carefully designed improvement plan in which the employee is given the opportunity to improve with the employer’s support. Without documentation or clear communication, it is difficult to prove poor performance.

When is the best time to seek legal assistance?

The best time to seek legal assistance in drawing up an improvement plan is as soon as it becomes apparent that an employee’s performance is structurally inadequate. A well-designed improvement plan is crucial for substantiating poor performance and must be concrete, achievable and verifiable, and the employee must be given sufficient time and support to improve. Legal advice will help you to set up the process carefully, avoid pitfalls and strengthen your position should dismissal ultimately be unavoidable. This will prevent your file from proving insufficient at a later stage.

Contact us for no-obligation legal advice

Are you dealing with an employee who is not performing well and would you like to know more about the legal conditions of an improvement plan, or do you need help drawing up an improvement plan? An employment law solicitor at Fruytier Lawyers in Business can advise you on this or review the plan for you. In addition, we can support you in the event that an employee challenges their dismissal on the grounds of poor performance and help you find a suitable solution for your company. Please feel free to contact us for legal advice.

Authors: Employment law solicitors Judy Sliepen and Myrddin van Westendorp