Managing Job Performance
In day-to-day employment practice, situations of underperformance are a common challenge for employers in all jurisdictions. Whether linked to unmet objectives or organizational difficulties, poor job performance raises the same practical question : how can employers react effectively and lawfully?
How is “job performance” understood under French and Polish employment law?
FRANCE
Under French employment law, “job performance” is not defined as an autonomous legal concept but is understood through the notions of professional adequacy (insuffisance professionnelle) and the employee’s ability to perform the duties inherent to their position. Performance is assessed considering the employee’s contractual duties, professional qualifications, and the objectives assigned by the employer in the exercise of its managerial authority.
French case law consistently defines professional insufficiency as the employee’s inability to perform their work satisfactorily, irrespective of any intentional wrongdoing. It may result from quantitative factors (failure to meet targets, errors, delays) and/or qualitative factors (lack of technical expertise, inadequate managerial skills, or deficient organizational abilities).
Importantly, French law distinguishes clearly between professional insufficiency and misconduct. Poor performance, as such, does not constitute a fault unless it is voluntary or results from deliberate non-compliance.
POLAND
The term “job performance” is not defined under Polish employment law as a standalone legal term provided in the Labour Code. Instead, performance is assessed through the employee’s statutory duties, in particular the obligation to perform work diligently and carefully. It provides a legal basis for evaluating whether an employee meets required standards and achieves expected outcomes. In addition, employees must follow the employer’s work-related instructions, provided they are lawful and consistent with the employment contract. In practice, an employee’s “performance” is therefore understood as compliance with these duties and the proper execution of assigned tasks and instructions.
How may employers assess job performance in practice in France and Poland?
FRANCE
Employers are generally free to assess employee performance as part of their managerial prerogatives, subject to compliance with case-law limitations. There is no general obligation to conduct annual performance reviews, except where required by collective bargaining agreements. Nevertheless, performance evaluations play a central role in employment relationships and litigation.
Assessment methods must rely on objective, transparent, precise, and appropriate criteria directly related to the employee’s professional activity. The French Labor Code requires evaluation criteria to be relevant, verifiable, and known to the employee. Particular caution is required when behavioral or “soft skill” criteria are used, as courts strictly scrutinize their precision, excluding any intrusion into the employee’s personal sphere.
Performance reviews also serve a probationary function: they contribute to the employer’s obligation to adapt employees to their positions and to prevent psychosocial risks, while simultaneously documenting any difficulties that may later justify corrective measures or termination.
POLAND
In Poland, employers typically assess job performance by referring to the employee’s statutory and contractual duties. Polish employers are in general entitled to assess employee performance as part of their managerial prerogatives, provided they comply with applicable case-law limitations and general labor law principles.
Importantly, employers are expected to use objective and fair assessment criteria when evaluating employees and the results of their work – such obligations result directly from the Polish Labor Code. Where performance issues arise, it is common to document specific shortcomings, provide guidance or training, and set clear improvement expectations within defined timelines. Assessment processes should be applied in a non-discriminatory manner.
What measures can employers take to address or improve unsatisfactory job performance in France and Poland?
FRANCE
Employers have a duty to support and accompany employees facing performance difficulties. Under Article L. 6321-1 of the Labor Code, employers must ensure employees’ adaptation to their jobs and maintain their ability to remain employed, particularly considering technological or organizational changes. This obligation entails providing appropriate training, sufficient adjustment periods, and, where necessary, individualized support.
Consequently, an employer may not legitimately rely on professional insufficiency if it has failed to provide the employee with the necessary tools, training, or time to perform their duties.
Case law confirms that dismissal for poor performance is unjustified where underperformance is attributable to inadequate training, unsuitable workload, or unaddressed medical or occupational health recommendations. In practice, employers commonly implement performance improvement plans, targeted training programs, or role adjustments before considering termination.
POLAND
As job performance assessment is not specifically regulated by labor law, employers generally have broad discretion to evaluate employees as part of their managerial prerogatives. In practice, employers commonly use annual or periodic evaluations, KPIs, appraisal systems, quality checks, and regular feedback to identify performance gaps and set expectations.
Although Polish labor law does not regulate so-called performance improvement plans or similar formal measures, employers often implement them in practice to improve efficiency or effectiveness (e.g., defining measurable goals, deadlines, follow-up meetings, and support such as training or coaching). Employers may also take organizational steps such as closer supervision, adjusting workload, providing additional instructions, or where permissible, reassigning tasks or changing the role within the agreed scope of duties. If performance remains unsatisfactory, employers typically document shortcomings and may issue warnings and ultimately consider termination, ensuring that such actions are objective, fair, consistent and properly evidenced.
Can poor job performance lead to disciplinary action or termination under French and Polish employment law?
FRANCE
Poor job performance may ultimately justify termination under French law, provided it constitutes a serious cause (“cause réelle et sérieuse”). Dismissal for poor performance is lawful if the employer can demonstrate objective facts showing the employee’s inability to perform essential duties, assessed globally rather than on isolated incidents. While dismissal letters may simply refer to “professional insufficiency,” the employer bears the burden of proof in the event of a dispute.
Crucially, dismissal for poor performance does not fall within the disciplinary framework, as professional insufficiency is not a fault. Confusing disciplinary dismissal with dismissal for professional inadequacy may invalidate the termination. However, French law allows employers to rely simultaneously on misconduct and professional insufficiency, provided each ground is based on distinct facts and the appropriate procedures are strictly observed.
POLAND
Poor job performance may justify termination of an employment contract, and in practice it is one of the most common reasons for dismissals.
The reasons of termination with notice do not need to be particularly severe – repeated low quality of work supported by specific examples may be sufficient, provided it is properly documented to mitigate legal risk.
Poor performance may also lead to disciplinary measures (e.g., warnings), especially if the employee fails to meet expected standards despite feedback or instructions. By contrast, disciplinary dismissal (termination without notice) requires a “gross breach” of the employee’s basic duties. In certain cases serious performance failures may contribute to such a breach, but these two dismissal regimes should not be confused. Employees may challenge both termination with notice and disciplinary dismissal in court and seek reinstatement or compensation.
AUTHORS
Paul Romatet joined MGG Legal in September 2019 and was promoted to Counsel in 2021. With several years spent abroad and more than seven years’ experience in an international law firm, Paul specializes in assisting foreign groups with all aspects of employment law, from the moment they set up in France.
Paul also advises on mergers and acquisitions, both in the pre-transaction phase and during post-closing integration. He leads employment audits and secures transactions in close collaboration with the legal and tax teams. He also advises companies facing reorganization projects (transfers, mergers, demergers, collective redundancies for economic reasons). He coordinates all parties involved to offer his clients operational and fully integrated solutions.
Monika Aniszewska is an attorney-at-law at our Polish member firm Zawirska Ruszczyk and a member of the Warsaw Bar Association.
Author of numerous press publications. Before joining Zawirska Ruszczyk in 2019, she worked at the National Labour Inspectorate. She has extensive experience in, including but not limited to the matters such as: compliance, employment of temporary employees and young people, benefits and allowances.
Monika and Paul are members of ELLINT Next, a working group within ELLINT.
