Poor Performance in German Employment Law

Poor Performance in German Employment Law / Schlechtleistung im Arbeitsrecht

April 04, 2026

Poor performance in German employment law exists where an employee does perform the work owed, but the quality or quantity of that work falls short of the requirements under the employment contract. Unlike a complete refusal to work, this is not a case of non-performance, but of defective performance of the employee’s contractual duties. Typical manifestations include recurring mistakes, quality defects, inadequate work results, a conspicuously slow working pace, or an increased error rate.

From an employment-law perspective, the term is not expressly defined by statute. Its legal classification derives from the employee’s general duty to work. Under section 611a of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the employee is required to perform the agreed work. However, the relevant benchmark is not an abstract ideal standard. Rather, the employee must perform to the extent that he or she is capable of doing so while making reasonable use of his or her personal abilities. That is precisely why the legal assessment of poor performance is often difficult: not every below-average performance is, at the same time, a culpable breach of duty.

When Is Poor Performance Relevant Under Employment Law?

Not every weak or faulty work performance justifies employment-law measures. What matters is whether the performance falls materially short of the relevant requirements over a longer period of time and whether the deficits are legally attributable to the employee as culpable conduct.

According to the case law of the Federal Labour Court (Bundesarbeitsgericht, BAG), an employee does not owe objectively outstanding performance. However, the employee must do what is required and do so as well as he or she can. Poor performance may therefore become relevant under employment law where

the employee’s performance consistently and materially falls short of that of comparable employees,
the errors or deficits can be specifically documented,
there are no plausible exonerating reasons such as illness, inadequate induction, unclear work instructions, or insufficient working resources, and
the employee fails to improve adequately despite having been given notice of the deficiencies or despite a warning.

What is always required is an overall assessment. Temporary dips in performance, private stress situations, illness-related limitations, or difficulties in a new position will not usually, in themselves, support a robust employment-law allegation.

Distinction from Underperformance

The terms poor performance and underperformance are often used side by side in employment-law practice and are sometimes even treated as synonyms. In practice, they cannot always be separated with absolute precision. Even so, the distinction is a useful one.

Poor performance usually refers to a qualitative deficiency in the work performed, meaning that the work is defective, incomplete, or otherwise fails to meet the applicable requirements. Underperformance, by contrast, tends to describe the quantitative side of the issue, such as a persistently insufficient volume of work, a clearly excessive slowness of working pace, or productivity that falls materially below what is usual.

For employment-law purposes, however, that terminological distinction is only the starting point. What matters is not the label, but the legal classification: does the case concern conduct that lies within the employee’s control, or a lack of aptitude? Is there a culpable breach of duty, or has the employee reached personal limits despite genuine efforts? It is precisely at this point that it becomes clear whether a warning, a termination on grounds of conduct, or at most a termination for personal reasons may be considered.

Distinction from Merely Below-Average Performance

In practice, employers often fail because they do not clearly distinguish between poor performance that is legally relevant and performance that is merely below average but still tolerable. The Federal Labour Court has not established a rigid threshold for this distinction, but it has developed guiding standards.

A marked and sustained shortfall in performance compared with the average performance of comparable employees may be a weighty indication of an employment-law breach of duty. In practice, some assessments refer to whether performance falls by around one third or more below the average. However, that is not a fixed threshold, but at most a rough point of orientation. Particularly in cases involving qualitative deficits, a purely numerical comparison will regularly not be sufficient.

Employers must instead additionally explain

which specific errors occurred,
how frequently they occurred,
what weight they carry in day-to-day operations, and
what operational consequences they had.

Particularly in demanding, communicative, or creative roles, it is not enough simply to refer in general terms to “poor work”. Anyone seeking to rely on poor performance in employment-law proceedings must be able to substantiate it in concrete terms.

Warning for Poor Performance

Before an employer issues a termination for poor performance, a warning will generally be required first. This applies in any case where the performance deficits are based on conduct that lies within the employee’s control and the employee could, in principle, change that conduct.

A warning serves two functions: it rebukes the conduct complained of and, at the same time, warns that further employment-law consequences, including termination, may follow in the event of repetition. For a warning based on poor performance to be effective, it must describe the allegations as specifically as possible. General references to “inadequate performance” or “too many errors” will regularly not suffice.

In particular, the following are required:

a specific description of the performance deficiencies complained of,
a clear request for improvement in the future, and
a warning that employment-law consequences may follow in the event of repetition.

From the employer’s perspective, it is also crucial that the deficiencies complained of have been documented properly. Error logs, performance data, customer complaints, or records of conversations often form the basis on which a warning can later withstand scrutiny at all. In practice, that documentation is frequently lacking.

Termination for Poor Performance

If poor performance continues despite an effective warning, a termination on grounds of conduct may be considered. However, this requires that the deficits are based on conduct within the employee’s control. If, by contrast, the employee lacks the necessary aptitude despite genuine efforts, a conduct-related termination will regularly be ruled out. In that case, at most a termination for personal reasons may come into consideration.

For an effective termination for poor performance, employers will generally have to show

that the performance deficits are substantial and persistent,
that they are culpably attributable to the employee,
that a relevant warning was issued beforehand,
that a sustained improvement is not to be expected in the future either, and
that milder means, such as reassignment, closer supervision, training, or a redistribution of duties, are insufficient.

Courts are right to impose high requirements on terminations for poor performance. That is especially so because the line between culpable misconduct, overstrain, and lack of aptitude is often fluid. Employers who terminate too hastily in this area often create considerable litigation risk.

What Practical Risks Do Employers Face?

Poor performance is one of the most delicate issues in ongoing employment relationships. The allegation is made quickly, but only rarely prepared properly. In practice, employment-law measures frequently fail because

performance deficits are described too vaguely,
comparative benchmarks are missing,
individual limitations are not taken into account,
the warning remains too indefinite, or
no clear distinction is made between conduct-related causes and aptitude-related causes.

It is particularly risky where employers rely only on general assessments such as “too slow”, “too prone to error”, or “not at the required level”. Such assessments may appear plausible in day-to-day business. Before the Labour Court, however, they will regularly not be sufficient.

Relevance for Employers

For employers, the key is to define performance expectations clearly at an early stage and to document any subsequent deviations in a comprehensible manner. Anyone who intends to sanction poor performance under employment law needs more than a negative gut feeling. They need a robust factual basis.

This includes, in particular,

formulating measurable or at least comprehensible performance expectations,
documenting quality defects and errors systematically,
holding discussions with the employee at an early stage,
seriously considering supportive measures, and
preparing employment-law steps carefully.

Precisely because terminations for poor performance are subject to high requirements, an early legal assessment will regularly be decisive. Mistakes made in preparation usually cannot be remedied later.

Relevance for Employees

For employees, too, an allegation of poor performance must be taken seriously. It may be the preliminary stage to a warning, a structured improvement process, or a termination. That makes it all the more important to examine at an early stage what the allegation is actually based on.

Employees should ask, in particular,

whether the allegations have in fact been described with sufficient specificity,
whether the alleged deficits are based on conduct within their control,
whether health-related or operational causes have been ignored, and
whether the requirements were realistic in the first place and actually owed under the employment contract.

Particularly in the case of complex work, understaffing, or unclear instructions, the allegation of poor performance is often far less clear-cut than it may initially appear.

Conclusion

Poor performance in German employment law is legally relevant only where defective or inadequate work goes beyond mere performance weakness and can be culpably attributed to the employee. Not every below-average performance justifies employment-law measures. What matters is the correct legal classification, proper documentation, and a clear distinction between conduct within the employee’s control and a lack of aptitude.

Precisely because many employers fail at the preparation stage and employees often underestimate the significance of the allegation, an early employment-law assessment is advisable. Please get in touch with us.

* Where, in the future, we use only the generic masculine or the generic feminine for reasons of readability, this expressly includes all genders.