{"id":5870,"date":"2025-07-03T12:53:03","date_gmt":"2025-07-03T09:53:03","guid":{"rendered":"https:\/\/arbeidsadvocaat.nl\/employee-underperformance-where-is-the-line-between-underperformance-and-blameworthy-conduct-on-the-part-of-the-employer\/"},"modified":"2026-08-16T15:44:47","modified_gmt":"2026-08-16T12:44:47","slug":"employee-underperformance-where-is-the-line-between-underperformance-and-blameworthy-conduct-on-the-part-of-the-employer","status":"publish","type":"post","link":"https:\/\/arbeidsadvocaat.nl\/en\/employee-underperformance-where-is-the-line-between-underperformance-and-blameworthy-conduct-on-the-part-of-the-employer\/","title":{"rendered":"Employee Underperformance: Where Is the Line Between Underperformance and Blameworthy Conduct on the Part of the Employer?"},"content":{"rendered":"\n

Employer Misconduct or Negligence? Here\u2019s What the Courts Say <\/strong><\/h4>\n\n

A manager facing complaints from the team, an employer who subsequently imposes an improvement plan, and an employee who takes full sick leave: it sounds like a classic labor dispute. But how far can an employer go based on reports from coworkers? And what if the employer didn\u2019t give the employee a chance to present their side of the story? <\/p>\n\n

These very questions were at the heart of a recent case at Inholland University of Applied Sciences<\/a>. And it is noteworthy that while the subdistrict court judge handed down a harsh ruling against the employer, the court of appeals later reached a different conclusion. <\/p>\n\n

Complaints submitted through the confidential advisor<\/strong><\/h4>\n\n

The case involves an employee who has been working as a manager since 1999 and supervises approximately 35 people. In the fall of 2022, several employees approached the confidential advisor with complaints about her management style. Without investigating the substance of these complaints or discussing them with the employee herself, an improvement plan was imposed. <\/p>\n\n

According to the subdistrict court judge, this was a clear violation of the principle of the right to be heard. The reports were anonymous and vaguely worded, and the employee was not given a chance to defend herself. Furthermore, she had never previously been reprimanded regarding her job performance. The judge found this to be seriously culpable conduct<\/a> on the part of the employer and awarded the employee, in addition to a transition payment<\/a>, fair compensation<\/a> of \u20ac155,000, plus reimbursement of her full attorney\u2019s fees. <\/p>\n\n

Appeal: No Serious Culpable Conduct<\/strong><\/h4>\n\n

On appeal, the Court of Appeal in The Hague ruled otherwise. The court found that the employer had, in fact, acted prudently, in part to prevent the situation from escalating. A conscious decision had been made not to launch a formal investigation in order to protect the employee\u2019s position. Furthermore, the employee had personally agreed to the so-called development plan, and no direct sanctions had been imposed. <\/p>\n\n

The court also held that the employee should have been expected to be open to mediation in order to restore trust. She had rejected the employer\u2019s offer. Because the improvement plan was developed through mutual agreement and was not linked to disciplinary measures, the court found no grounds for equitable compensation. That compensation had to be repaid. <\/p>\n\n

What can we learn from this?<\/strong><\/h4>\n\n

The subdistrict court\u2019s ruling shows that employers must act with due care when handling complaints about employees. An improvement plan developed without giving the employee an opportunity to be heard may be considered a serious breach of duty. <\/p>\n\n

At the same time, the court makes it clear that certain expectations may also be placed on the employee. If there is room for dialogue and rebuilding trust, that opportunity must be seized. In this case, another factor was that the employee himself took the initiative to terminate the employment relationship. <\/p>\n\n

Tips for Employers<\/strong><\/h4>\n\n