Notice for unsatisfactory work results: the request, reasonable time and common mistakes

A salesperson misses the plan month after month, an accountant repeatedly makes errors in the closing accounts, a developer delivers code that has to be rewritten. None of them arrives late or refuses to work; the problem lies in the results. The Labour Code (Act No. 311/2001 Coll.) provides a separate ground of notice for this situation, one that differs from a breach of work discipline both in its conditions and in the procedure. If an employer confuses the two grounds, the notice may not stand, even where the problems with the work are real.

What the law requires

An employer may give an employee notice only on grounds where […] the employee […] performs work tasks unsatisfactorily and the employer, within the last six months, requested the employee in writing to remedy the shortcomings and the employee failed to remedy them within a reasonable time […]

— Section 63(1) of the Labour Code (unofficial English translation)

Three conditions follow from that text and must be met together. The employee does not perform tasks satisfactorily, the yardstick being the tasks and standards the employer has set within the agreed type of work. Within the six months preceding the notice, the employer requested the employee in writing to remedy the shortcomings. And the employee failed to remedy them within a reasonable time. A missing or imprecise request generally means that the notice will not stand, even where the employee’s results are objectively weak.

Results, or discipline

A breach of work discipline may be sanctioned only where it is culpable, at least by negligence; the Supreme Court of the Slovak Republic has said so repeatedly, for instance in decision 2Cdo/284/2020. For unsatisfactory results the law requires no fault; what matters is whether the results fall short of the required level and whether the employer followed the procedure with the request. The distinction has practical consequences. In a dispute that ended in the rejection of an appeal on a point of law under file no. 9Cdo/290/2020, the employer gave notice for a breach of work discipline and cited, as one of the acts making it up, the repeated erroneous acceptance of material. The court of first instance assessed such errors as an unsatisfactory work result, which ought to have been preceded by a written request to remedy the shortcomings, and since the employer did not prove that procedure, the ground did not stand.

Since the ground of notice cannot be changed afterwards (Section 61(2)), the classification has to be made correctly before the first step in writing. If the employee deliberately does not do the work, ignores instructions or fails to perform duties through negligence, the matter is one of discipline and of the procedure with a warning of possible dismissal, which we examine in the question on notice for a breach of discipline. If the employee is trying but is not up to the standard, the matter is one of results and of the procedure with a request.

How to draft the request

The request should describe the specific tasks or standards the employee is not meeting, the results for the period under review and the gap against what was expected. A general assessment along the lines of “your work does not meet requirements” will not stand in a dispute, because it does not show what the employee was to improve. It helps if the request is based on standards or targets the employee had available in advance, for example in the job description or in the assignment of tasks.

Part of the request is the time for remedy. The law speaks only of a reasonable time and its length depends on the nature of the work; we recommend setting it so that it covers at least one whole period over which results are normally evaluated, while both it and the evaluation must still fit within six months of service of the request. With a half-yearly or annual evaluation cycle, therefore, agree a shorter review period with interim measurement for the time for remedy; otherwise the request will have aged by the date of the notice and the ground will not stand. Serve the request provably, preferably in person against a signature, and evaluate the results in writing once the time has elapsed. If the employee remedies the shortcomings, the request has served its purpose; if the results deteriorate again later, remember that the request must date from the six months preceding the notice.

Conditions of the notice itself

The duty to offer other suitable work does not apply to this ground; the Act expressly excludes it for notice on grounds of unsatisfactory performance of work tasks (Section 63(2)). Nor does the two-month period under Section 63(4) apply here, as it concerns breaches of discipline; the time frame is set by the six-month window for the request. The prohibition on notice during a protected period, by contrast, applies in full, because the exceptions in Section 64(3) do not cover this ground. For an employee with a disability you need the prior consent of the office of labour, social affairs and family (Section 66(1)), and if employee representatives operate in your workplace, consult them on the notice in advance, failing which it is invalid (Section 74).

The notice period is at least one month and, where the employment has lasted at least one year, at least two months (Section 62(2) and (4)); no severance pay is due on this ground (Section 76(1)). In the notice, refer to the request served, the period evaluated and the results established. The duty to acquaint the employee with the ground and allow a response is imposed by the Act for breaches of discipline (Section 63(6)); for results, a conversation before the notice is advisable in any event.

The Czech rules

For employees in Czechia a corresponding ground applies under Section 52(f) of the Czech Labour Code, though the request may date from the last twelve months (Section 52 of Act No. 262/2006 Sb.). The notice period on this ground is at least one month and starts to run on the day the notice is served (Section 51). Further differences between the two regimes are summarised in the article on termination of employment in Czechia and in Slovakia.

How we can help

We set up the request, the evaluation and the further procedure as part of our problem employee service, under both Slovak and Czech law. If the results do not improve, we prepare the notice itself through termination of employment by notice. If the employee is on sick leave, pregnant or on parental leave, start with the article on notice during a protected period.