Draw up employee improvement plan

When an employee does not perform well or does not meet the job requirements (any longer), dismissal seems obvious. Yet it is not that simple. Before an employer may proceed to dismiss a dysfunctional employee, the employee must be given the opportunity to improve performance.

To support and help a dysfunctional employee improve his or her performance, an employer can start an improvement plan together with the employee. An improvement plan aims to seriously and actively improve the employee’s performance, with the ultimate goal of preventing dismissal and ensuring that an 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. When an employer is not satisfied with an employee’s performance, the choice may be made to draw up this plan. Among other things, the plan describes the steps the employee needs to take to perform better. In addition, the job requirements that the employee must meet and those that the employee does not meet in the eyes of the employer are recorded in writing. The purpose of the plan is to start a process that guides the employee in improving his or her performance when an employee is dysfunctional.

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 in question about his or her inadequate performance. An employer would do well to first ask himself 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 using an action plan.

Examples of such problems include lagging sales performance, insufficient quality of work, not delivering work on time or not meeting the job requirements associated with the position. Have actions already been taken to improve the employee’s performance or functioning, and has the employee been given the opportunity to improve, e.g. through training, coaching or work-related adjustments? And have these steps not produced the desired results? If so, an action plan for improvement may offer a solution.

Is the inadequate performance a consequence of a behavioural problem or is there a disturbed working relationship due to other reasons? In that case, an employer will generally not opt for an improvement plan, but will take disciplinary measures.

Drawing up an improvement plan

An improvement plan must include several components. These are required to give an employee a fair chance to improve. In addition, the plan serves as a handhold during the improvement process. Based on the components described, the employer can assess whether there is progress or improvement. The plan can be drawn up by the employer, the employee or both parties together.

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

• A description of the problem: where does the employee fall short and what examples show this?
• The company’s expectations for the employee’s position;
• An action plan explaining what progress the employer wants to see in the employee’s performance and how the employee should improve, supplemented by training and tools provided by the employer for this purpose;
• A clear planning including concrete agreements and goals and the start and end date of the improvement plan;
• A description of the (possible) consequences if the employee’s performance has not improved sufficiently after completion of the improvement plan.

Improvement plan example

Everyone is free to draw up an improvement plan. Of course, it is important to clearly record the agreements made and to map out the timeline of the process. In addition, concrete agreements and goals, reports of interim evaluations and the necessary guidance from the company should also be mentioned within the plan. Below is an improvement plan example for recording agreements and tracking the progress of the improvement plan.

Improvement plan example – Fruytier Lawyers in Business

Duration and duration of an improvement plan:

The duration of an improvement process is free to choose. Legally, there is no prescribed duration. However, the period should be long enough to give the employee a realistic chance to improve performance. How long the process takes depends, among other things, on the severity and nature of the inadequate performance and the duration of the employment contract. If the improvement plan concerns concrete goals that are relatively easy to achieve, a duration of a few weeks will generally suffice. For drastic improvements in performance or mastering new tasks, an improvement plan of several months is usually entered into.

Interim evaluation

An important part of an improvement plan is scheduling evaluation moments. An interim evaluation of an improvement plan offers room to adjust certain elements or goals of the plan, so that employer and employee work together towards the best result. An interim evaluation also provides insight into the current progress and state of affairs. Which concrete goals have been achieved and which elements require extra attention? In general, it is recommended to schedule an interim evaluation weekly or once every fortnight, so that the employer can assist the employee in the best possible way.

Final evaluation: insufficient improvement

At the end of the course, the final evaluation takes place. Employer and employee take stock and discuss the results of the improvement plan. Have the set goals been achieved and has the improvement process been successful? Then the process can be concluded. If, in the eyes of the employer, the employee shows insufficient improvement, the employer can investigate whether redeployment or a job change is an option. Support may be offered in the form of training, guidance or coaching.

Does the final evaluation show insufficient improvement in the employee’s performance and are these conclusions recorded in a performance file? And is there no possibility of re-employment for the employee who performs insufficiently? Then the final consequence takes effect, as discussed and recorded at the start of the process. If this leads to a dismissal or dissolution of the employment contract, an employer would be well advised to seek advice from a legal specialist or employment law lawyer prior to the final evaluation.

Resignation by mutual consent

As described above, terminating an employment contract on the basis of a negatively concluded improvement plan alone is not sufficient. Investigating whether redeployment of the employee within the organisation is a possibility is mandatory for employers.

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

When the improvement file is complete and meets all the conditions set under employment law, the employer can submit the dissolution request or draw up a settlement agreement. A complete and strong file offers possibilities for terminating the employment contract by mutual agreement. In this situation, the employee retains the right to an unemployment benefit. An employee who does not perform well and may be dismissed retains the right to a transition allowance.

Consequences of refusing an improvement plan

Of course, it can happen that an employee does not agree with the employer’s criticism of their performance. The employee may refuse a course of improvement, for example if, in the employee’s view, there are unjustified assessments by a manager. In this case, it is important that the employer properly records the refusal and reason for refusal in writing.

In an interview, the employer asks the employee why he or she does not agree with the criticism of the performance and the employer 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 ask the subdistrict court to dissolve the employment contract. A disturbed working relationship will then have occurred.

<2h>Protecting your own interests

An employee can also refuse the improvement plan if, in his or her eyes, unrealistic goals are set by the employer. When drawing up the plan, it is therefore important that both parties protect their own interests, but also put themselves in the other’s shoes. While the employee has the right to refuse the plan, he or she is expected to adopt a constructive attitude. This, of course, also applies to the employer.

Contact us for free 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 drafting an improvement plan? A lawyer at Fruytier Lawyers in Business can provide you with specific advice on this or review the plan for you. We will also support you in the event that an employee challenges a dismissal for dysfunction and help you find a suitable solution for your company. Feel free to contact us for legal advice.