The “d” ground: why dismissal for poor performance usually fails

Last updated: October 2026

Anyone who wants to terminate an employee for poor performance is, statistically speaking, choosing the most difficult path under employment termination law. We analyzed 2,747 published termination requests from employers and identified where things go wrong.

The Most Difficult Ground, in Perspective

The law establishes a closed system of grounds for dismissal through the subdistrict court (Art. 7:669(3) of the Dutch Civil Code). In our dataset of published first-instance cases, the employer cites ground “d” (poor performance) in 560 of the 2,747 petitions, or approximately one in five cases. When the judge proceeds to a substantive assessment of that ground, the employer is successful in 21% of the cases. By comparison: the “g” ground (deteriorated working relationship) succeeds in 61% of cases, the “e” ground (culpable conduct) in 39%, and the “h” ground in 29%. Only ground i—the cumulative ground—scores lower at 13%, but ground i is a cumulative ground and not an independent ground.

The “d” ground is usually not invoked on its own. In only 55 of the 560 cases is poor performance the sole basis. The most common combinations are “d” with “g” and “i” (121 cases) and “d” with “g” alone (91 cases). In 313 cases, the “d” ground is the primary basis. And in 148 cases, the judge does not even address the “d” ground, usually because the dissolution is already granted on another basis.

The bar was raised

Furthermore, the allocation rate has been steadily declining. In the first few years after the Wwz was enacted, it hovered around 30%. Since 2019, the rate has not exceeded 21% in any given year. Over the last three full years (2023 through 2025), there were 15 awards out of 101 cases reviewed. These figures correspond to the statistics in the professional literature, which showed a rate of 29% for the first year of the Wwz and 16% and 15% for 2020 and 2024, respectively (Kruit et al., ArbeidsRecht 2016/35 and 2025/35).

It is striking that the decline continues even though the Supreme Court, in the Ecofys ruling (June 14, 2019) actually granted the employer leeway: there are no formal requirements for the improvement process, the employer has freedom in structuring it, and what is required of the employer depends on the circumstances of the case. This legal leeway therefore does not translate into higher chances of success. The most plausible explanation is that cases that are well-prepared are settled or result in a settlement agreement, meaning that it is primarily the weaker cases that reach the court. In addition, since the introduction of the “i” ground in 2020, the “d” ground has been invoked more often as part of a combination of grounds than as a standalone basis.

Differences Among Courts

There are striking differences between courts. At the Overijssel District Court, 40% of the reviewed d-grounds are granted, compared to 12% at the North Holland District Court. The numbers per court are modest (18 to 67 cases reviewed over eleven years), and differences in caseload and publication practices may skew the picture. It is therefore inappropriate to make a definitive judgment about the strictness of individual courts, but the variation itself is a factor that must be taken into account.

Where Does It Fall Short: The Improvement Process

The real story actually lies below. For each case, we recorded what the judge ruled regarding the improvement plan. The comparison between granted and denied cases leaves little to the imagination. In virtually all granted cases, a corrective action plan had been offered (99%), the areas for improvement had been specifically identified (99%), and the employee had been informed of the criticism in a timely manner (99%). In dismissed cases, each of those percentages is around or below half.

The final judicial ruling on the rehabilitation program confirms that assessment. In the dismissed cases in which the judge ruled on the improvement process, the judge found in 93% of the cases that the process was insufficient or entirely absent (198 instances of insufficiency, 81 instances of no process, out of 300 cases). Case file documentation shows the same pattern: in dismissed cases, it was insufficient in 62% of the cases reviewed; in granted cases, it was sufficient in 92%.

And then there’s the most striking finding: the duration of the improvement process does not distinguish between granted and denied cases. When the judge specifically mentions the duration, it typically ranges between 3 and 9 months in both groups, with a median of 6 months in both groups. Only a small number of cases describe improvement periods lasting several years, usually involving consecutive processes. Strikingly, almost all of these cases result in a favorable ruling. This reinforces the main point all the more: it is not about how long the employer takes to make improvements, but how well. Specific goals, a written plan, guidance, interim evaluations, and a clear warning about the consequences make all the difference.

Legally speaking, that last point is noteworthy. Since the Ecofys ruling, it has been established that an improvement plan does not need to be in writing. The law imposes no formal requirements on the process. The figures show that in practice, this rule is largely ignored: in cases where a claim is upheld, the plan is almost always documented in writing. This is easily explained. Anything not put in writing does not exist in the eyes of the court until it is substantiated, and this is where many employers run into trouble.

Three circumstances now serve as virtually absolute contraindications. In the cases assigned to the court in which the judge addressed this issue, the poor performance did not stem from illness, insufficient training, or working conditions in any instance. Where one of those causes was indeed a factor, the case fell almost exclusively into the group of rejected claims. This is also exactly as prescribed by law (Art. 7:669(3)(d) of the Dutch Civil Code).

Even if the d-ground fails, the matter isn’t over yet

A rejected “d” ground does not necessarily mean that a petition for dissolution has been denied. In 139 of the 326 cases where the “d” ground was rejected (43%), the judge still granted the dissolution on a different ground, most often the “g” ground (109 cases). The pattern is clear: a failed or absent remediation process damages the relationship, and it is precisely that damaged relationship that subsequently leads to the dissolution. In the literature, this route is also known as the “Asscher escape”: termination on “g” grounds where “d” grounds are insufficient. But that escape comes at a price, and we can now quantify it. In half of these 139 cases (69 cases, 50%), the court awarded the employee fair compensation, with a median of €40,000. By comparison, that figure stands at 20% across all employer claims that were granted. Anyone who deliberately causes a disruption therefore not only risks being found to have acted with serious culpability but, as the figures show, also regularly pays the price for it. The correlation between rejected “d” grounds and awards based on “g” grounds underscores, above all, how important the quality of the proceedings is, regardless of the outcome of the case.

What does this mean in practice?

For the employer, the lesson is that the improvement process is not a mere formality but the heart of the matter. The elements that are almost always present in assigned cases collectively form the benchmark:

• Confront the employee with the criticism in a timely and clear manner, and document it.
• Identify specific, measurable areas for improvement in a written improvement plan.
• Offer serious guidance: coaching, training, or additional support as needed.
• Conduct interim evaluations in writing, not just at the end.
• Explicitly warn that termination will follow if no improvement is made.
• Rule out the possibility that illness, inadequate training, or working conditions are the actual cause.

For an employee facing a performance improvement process, these same elements serve as lines of defense. If there is no written plan, if the areas for improvement are vague, if there has never been an evaluation, or if the criticism came as a surprise, then—according to the statistics—the employer’s case is not very strong. At the same time, caution is advised regarding the second route: anyone who allows the conflict to escalate may still lose their job on grounds of serious misconduct.