Dismissal for poor performance: The Toffoletto De Luca Tamajo Employment Law Hub releases a new Law Map comparing the risks posed in 38 countries

30 Jul 2019

Poor performance represents a justified cause for dismissal. However, in Italy, as is the case in many other jurisdictions, employers can find themselves in a delicate situation with a high risk of consequent litigation, when it comes to challenging an employee’s poor performance and the subsequent termination of his or her employment contract. 

These are the results yielded by a study carried out by Toffoletto De Luca Tamajo - one of Italy’s leading  law firms specialising in employment law, labour law, and commercial agency agreements - on the ability of companies to dismiss employees for poor performance. The Poor Performance Law Map™  is just one of many interactive maps showing the results of complex comparative law studies carried out by the firm in collaboration with Ius Laboris, the largest global alliance of employment law specialists, of which Toffoletto De Luca Tamajo is a founding member. 

An employee’s failure to perform his or her job in the company’s best interests and with the diligence required by the nature of the work, can constitute grounds for termination of an employment contract. 

Francesco Lorenzi, a lawyer at Toffoletto De Luca Tamajo explained: “The Law Map shows that dismissal for poor performance is permitted in most countries, even if there are significant differences between some jurisdictions”.

According to consolidated case law in Italy, dismissal for poor performance is lawful provided that the employer is able to prove that: i) the employee has performed at a level that is inferior to that of colleagues with the same job title and duties, ii) that the performance gap is considerable and iii) that the employee’s poor performance is a result of the employee’s own negligence and inexperience and cannot be ascribed to the company.

An International Outlook 

On a global level, poor performance is considered a factor that must be monitored, even if its importance weighs differently across jurisdictions. For instance, in countries like Mexico, Chile, Finland, Moldavia and Ireland, poor performance does not constitute a valid ground for dismissal per se, but has to be supported by other “indicators”. 

On the opposite side of the scale we find countries like Belgium, Brazil, Switzerland and Greece where dismissal for poor performance is possible and the risks for taking such action are limited; either because the law does not require a justification for the dismissal, like in Brazil, or because employers are entitled to let an employee go for whatever reason, provided such grounds are not wholly unreasonable- as is the case in Belgium. 

On the other hand, in the UK, USA, France, Spain, The Netherlands, Germany, Russia, Costa Rica and South Africa, dismissal for poor performance is lawful as long as the employer respects the disciplinary procedure and is able to prove that the employee performed poorly over a prolonged period of time.