All companies aim to optimise performance, including the effectiveness of their employees. Godelijn Boonman of GMW lawyers explains more about performance problems and PIPs. What happens when employee performance becomes a problem and what does a PIP mean in practice?
When is performance a “problem”?
Simply put, a performance problem can occur whenever an employee repeatedly under-performs in their role. As soon as an employer informs an employee that there is a performance problem, such as poor performance, the problem exists.
While performance problems often negatively affect an employment relationship, a performance problem on its own does not automatically lead to dismissal. What happens thereafter is key.
In the Netherlands, both employer and employee are expected to try to solve issues such as performance problems together before the situation reaches the point where termination of employment becomes justified.
What is a PIP?
A Performance Improvement Plan (PIP) is often but not necessarily a formal document that defines recurring performance problems, specific improvement goals that an employee needs to achieve, a time scale for doing so and the consequences when not achieved. An employer can choose to implement a PIP on any employee who has a performance problem, except for an employee who has already been declared sick. An employer will need to wait for the employee to get better first.
What does a PIP mean in practice?
We can view the implementation of a PIP in two ways:
1 – As an opportunity for the employee to improve, and/or
2 – As a signal that the employment is at risk.
By going through a PIP, an employer can give a poorly functioning employee the chance to succeed and perform well.
However, you can use a PIP to build a case for demotion or dismissal. As such, it should be a red flag signal to the employee; there is a significant problem.
Once you implement a PIP, both employer and employee have obligations they must fulfill.
The employer has an obligation to help the employee turn their performance around by providing additional assistance, supervision or training. They must also document the PIP process.
The employee has an obligation to cooperate and actively participate in the PIP process. If the employee adopts a passive attitude, refuses to cooperate, or obstructs the PIP, then the employer can hold this against them.
Don’t get PIPped to the post
In practice, performance issues can quickly derail an employment relationship. If the implementation of the PIP does not lead to satisfactory performance, then it may be time to end the employment.
If you have an under-performing employee, or if your employer presents you with a PIP, it would be wise to seek legal advice. An employment lawyer can explain your rights, risks and obligations, allowing you to make the best possible decisions. Contact us now for all your questions related to performance problems and PIPs.
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 .