Disfunction, or unsuitability for a function is a ground for dismissal often put forward by employers. There are quite a few conditions required for an employer to be able to dismiss an employee on these grounds. Employers and employees who are confronted with (alleged) disfunction are well-advised to arrange professional assistance to avoid disappointment. It is important that unsuitability is not the result of:

  • illness or disability
  • insufficient care on the part of the employer in providing employee schooling
  • the employee’s working conditions

Employers who hold the view that an employee disfunctions are required to have specified and filed the shortcomings and to have concretised them by way of illustrations and examples. Next, the employee is entitled to an action plan for improvement. It is generally assumed that this action plan is a task that lies primarily with the employer.

An action plan with a view to improvement may take many shapes, as long as the effort to induce improvement of the employee’s functioning is sufficiently obvious. The term of the action plan need not depend on the duration of the corresponding employment. Under circumstances, six weeks may be enough for an improvement action plan. As is often the case in employment law, the duration of an action plan depends on the specific circumstances.

Before there is an actual case of dismissal on grounds of disfunction, an employer will be required to examine if replacement of the employee in another, appropriate function, either with or without additional schooling, is a possibility.

Disfunction involves a customised job! Any questions? Just contact Elfi Arbeidsrecht Advocaat!