news

Does a contemporary empowerment policy release the employer from the legal obligation to offer the employee a process of improvement (PIP)?

23 September 2022

Last summer, the Amsterdam District Court ruled on this issue: the empowerment policy that Red Bull pursues does not affect Red Bull's obligation as an employer to offer a process of improvement (PIP). Read in this blog what exactly this empowerment policy entails and how the subdistrict court reached its verdict.

What was at play here?

Red Bull is not satisfied with the performance of a Customer Service Specialist (hereinafter: 'employee') and asks the court to dissolve the employment contract: the employee is allegedly not performing well despite supervision, coaching and weekly interviews. In doing so, Red Bull - in its own words - gave the employee sufficient opportunity to improve her performance. However, the employee argues that there is no evidence of his malfunctioning. The employee was not informed of this, nor was the employee offered any opportunity to improve.

Assessment and decision

The emails, interview reports and assessment reports submitted did not show that Red Bull had made it clear that the employee was not functioning properly. According to the subdistrict court, it is on Red Bull to inform the employee in writing in a timely manner about the malfunctioning and to warn that it could lead to dismissal. Red Bull acknowledges that this was not done, but refers to its empowerment policy. This policy means that no 'file' will be built up with warnings and reprimands, but that employees will only be encouraged (i.e. without pointing out shortcomings). A classic improvement process (also called 'PIP') would, according to Red Bull, have a paralyzing effect. The subdistrict court acknowledged that this might be the case, but that did not mean that Red Bull should not have made it clear to the employee that there was a PIP that could result in dismissal because of malfunctioning. The judge therefore rejected Red Bull's request for dissolution.

Tips & Tricks

The Amsterdam court makes clear that this emerging corporate culture - characterized primarily by a focus on praising, encouraging, expressing approval and giving confidence to the employee and omitting warnings and negative evaluations - does not relieve the employer of its obligation to duly inform the employee in writing about malfunctioning and about the consequences if the performance does not improve (namely, dismissal).

 

Source: the Amsterdam District Court 12 August 2022, ECLI:NL:RBAMS:2022:4697.



More information?

All lawyers of our firm specializing in labor law. We have extensive experience in providing employment law advice and resolving employment disputes.