When an employee has performance issues or long-term illness, this can lead to disputes in the workplace. It could even lead to termination of employment. Both employee and employer have certain rights and obligations. What each party can do depends on the exact details of the situation. Expat employment law expert Godelijn Boonman shares key considerations.
When an employee is not performing well in their role, then an employer can take certain steps to address this. The employer may begin with an intervention such as a conversation about performance levels and what they need for the employee to improve. However, the employer may choose instead to create a Performance Improvement Plan (PIP) for the employee. A PIP is a formal document and is far more serious than a discussion.
Once an employer implements a PIP on their employee, both employer and employee must fulfil their obligations in the process. Both parties should try to remedy the situation before it reaches the point where termination of employment becomes justified.
The employer is obliged to try and help the employee improve their performance, for instance by providing the necessary assistance, supervision or training. The employer must document the entire PIP process.
The employee has the obligation to actively participate in their performance improvement process. The obligation is also on the employee to ensure that the employer is fulfilling their obligations in the process. If the employee adopts a passive attitude towards the planned performance improvement, refuses to cooperate in the process, or otherwise obstructs the implementation of their PIP, then the employer can hold this against them.
While a PIP can be used to help an employee succeed, it can also be used to build a case for demotion or dismissal. As such, it is a signal that your employment may be at risk.
But what happens if the poor performance of the employee occurs during long-term illness?
When the employee is declared sick
The moment that an employee is declared unable to work due to illness, whether physical or mental, their status becomes that of a “sick employee” – and both parties’ rights change. A company doctor (bedrijfarts) is the only person who can make this determination.
The employer has the obligation to pay the sick employee’s salary during the first two years of illness, regardless of how much work the employee can perform (in other words: regardless of their performance).
The employer cannot implement a PIP on an employee who was already sick.
Employers cannot dismiss a sick employee during the first two years of their illness on commercial grounds such as reorganisation. (Note that an employee – even a sick one – can always be fired on the spot if the strict criteria for summary dismissal are met.)
Under guidance from the company doctor, both the employer and the employee must work together to create a plan for reintegrating the employee into the organisation as they recover from their illness. This may entail the employee resuming their original duties, but if this is not possible, the employer may provide other “suitable work” for the employee to do instead.
If either party refuses to engage in discussions or to fulfill their obligations then this can lead to a dispute. It can sometimes even become grounds for terminating the employment relationship.
A dispute arises
Sick or under-performing? Truly sick, or just sick of the dispute? Questions like these can lead to an employment dispute.
Illness, performance issues and disputes are separate topics, but they often go hand in hand, and for good reason.
Is an employee’s performance questioned while they are already declared sick? Then the employee may feel that the employer is working against their recovery. When an employer informs an employee that they need to improve their performance, the employee could respond by reporting sick. The employer may then feel that the employee is working against their performance improvement.
In practice, performance issues, illness and especially disputes will often negatively affect the employment relationship.
If an employee calls in sick after a dispute has occurred, this is often qualified as inability to work due to situational inability. A company doctor can then assess if the employee’s inability to work is also due to sickness.
There are only 2 options
By the time a situation escalates to a dispute, it leaves you with only two options: you can either solve it together or solve it apart.
Option 1 – Solve it together
The employer and the employee can come to an agreement together. For instance through mediation, on how to resolve the dispute and thereby improve the employment relationship to the point where it can continue. If this happens, then the employee can maintain the employment.
Unfortunately, once the situation has escalated past a certain point, repairing the relationship is often not a practical or mutually acceptable solution.
Option 2 – Solve it apart
Can the employer and the employee not agree on how to proceed together? Then it is necessary to terminate the employment relationship so that they can part ways.
Due to the time and costs involved in dismissal via the courts/UWV, and because sick employees have protection from dismissal, the termination of employment frequently occurs by means of a settlement agreement. A settlement agreement is a written offer by your employer to give up your job and leave the company voluntarily. This happens often in exchange for a certain set of conditions.
Learn more about settlement agreements in this feature by Legal Expat Desk: Settlement agreements – what you need to know
Don’t wait – get advice
If a problem develops at work, don’t wait to address it. Time alone rarely solves a dispute, and it can escalate fast. If you are uncertain of your rights, getting good advice at the beginning can help you to make better decisions. Situations sometimes reach a point where it would be wise to seek legal advice. For example, when they implement a PIP, an employment dispute occurs, or when you need to terminate an employment relationship.
If you need help with an employment issue, our team of English-speaking lawyers can advise you. We can help you understand your obligations and avoid pitfalls. We can also ensure that the agreements you are making cover all the essential topics.
Contact us using our easy online form or call us on 070 361 5048 to start a conversation.
Godelijn experienced an international upbringing and education as an expat child living in Africa and England. Back in The Netherlands, she studied law at the University of Utrecht (1990). She then embarked on her legal career as a lawyer by working 10 years for the well-known law firm of ‘Wladimiroff en Spong Advocaten’. In 2000 she joined GMW lawyers as a partner and is the head of the Labour law and Pension section.
Godelijn specialises in international employment law and has extensive experience in dealing with both non-contentious and contentious international employment matters including (collective) redundancy packages and dismissal. She works for both companies and individual employees, enabling her to keep an open mind to both sides of a case. Naturally she helps her clients when a problem has arisen, but prefers to act before an escalation has taken place. Advice on a fair Human Resource policy is an essential part of her work.
Godelijn Boonman is considered to be the undoubted employment specialist for the expat community because she is bilingual, has a large international clientele and a wealth of experience in international employment law matters. She is therefore frequently asked to be the key note speaker at international seminars.
Godelijn has a keen interest in the international community and is a member of the advisory board of ACCESS .