For a company to work effectively, an employer needs to be able to rely on committed, motivated and capable employees. Many employers organise mid-year reviews to assess the performance of their employees to determine whether they are on track to reach their goals for the year. Some employees might not be meeting their objectives or might even be underperforming. In such a case, it’s important for an employer to know what to do when an employee is not meeting expectations.
The importance of organising employee evaluations
There is no legal obligation for employers to organise evaluations. However, organising periodical evaluations is an effective way to assess an employee’s performance and to invest in their potential. As part of the evaluation process, the employer should set well-defined goals and objectives so that the employee knows exactly what is expected from them in the coming year.
An open-door policy can be beneficial for both parties and can help to provide employees with continuous feedback throughout the year. In addition, many companies organise mid-year reviews to give employees and managers a chance to take stock of how the working relationship is evolving.
Whether this takes the form of a mid-year review or continuous feedback, it is important for these conversations to take place, especially when the employer notices that an employee’s work is not up to standard. By not waiting until the end of the year for the final evaluation, the employee can adjust their performance and turn things around. This could prove useful for the employer too, as we will see later on.
One-on-one feedback sessions should create a safe space for dialogue. Biases should be set aside. It’s important to look at the underlying reasons for the substandard performance (e.g. unclear job description, unbalanced workload, unchallenging tasks, personal issues, wrong fit etc.).
What should you do if, after several substandard evaluations, there has been no progress?
If, in spite of one-to-ones and discussions, you don’t see any progress, it’s important to talk to the employee and to try to figure out how you can better support them to carry out their role successfully.
If you notice that the underperformance lies in mistakes or non-respect of individual agreements, you might want to issue a letter of formal notice to the employee. This will let the employee know that they are being given a final opportunity to fulfil the conditions of their employment contract.
If all else fails e.g. feedback sessions, discussions, formal notice(s), you might decide to terminate the working relationship. In this case it’s important that you keep a written record of the employee’s substandard performance to serve as evidence for the dismissal.
The employee might request to receive the reasons for their dismissal on the basis of the collective bargaining agreement (CBA) No. 109. As the employer, you have a legal obligation to reply to this request in writing. If the employee considers the reasons for the dismissal to be manifestly unreasonable, they are entitled to claim additional compensation. Although, in such a scenario, the burden of proof lies with the employee, you would be required to cooperate with the process of evidence collection if the case were taken to court.
It’s also important to bear in mind that labour court case-law states that the employer must give the employee a chance to redeem themself in the case of substandard performance. The employer will have to prove that discussions were held with the employee, and where appropriate that the employee was issued a written warning(s) and was given the opportunity to improve their performance. This is another reason why keeping a written record of substandard performance is key.
Conclusion
To build a climate of trust it is paramount to organise feedback sessions and open discussions with your employees. If an employee does not meet the standard of performance expected, it’s important for the employer to understand the underlying reasons so they can help the employee to improve their performance. Keeping a written record of these exchanges is key. Indeed, if, as a last resort, an employer decides to terminate the employment agreement because, despite discussions, there is no improvement, the employee might request the reasons for the dismissal on the basis of CBA No. 109. By keeping a written record, the employee cannot argue that they were not informed and in the case they do, you will have sufficient evidence to prove otherwise. Furthermore, case law on this matter is clear. The employer must prove that they have given the employee a chance to redeem themself.
Bart Elias, Partner, PwC Legal BV/SRL, Tel: +32 473 91 06 02
Pascale Moreau, Partner, PwC Legal BV/SRL, Tel: +32 479 90 02 76
Jessica De Bels, Managing Associate, PwC Legal BV/SRL, Tel: +32 472 46 98 19
