UNILATERAL AMENDMENT OF THE EMPLOYMENT AGREEMENT BY THE EMPLOYER

Many employment agreements contain a section which allows the employer to change the agreement without permission of the employee. This section may be called upon by the employer, but is this always permitted? The short answer is no.

WHICH AGREEMENTS?

The changes an employer can make to the agreement are limited to rules and instructional guidelines set by the employer. This includes safety guidelines and social media guidelines, for example. To change these parts of the agreement, an employer does not need prior approval of the employee. When it comes down to changing working conditions such as the salary, function title, working hours or beneficiary agreements, an employer will try and obtain approval from the employee. If the employee approves, the employment agreement will be changed on the basis of mutual agreement.

WEIGHTY REASONS

If the employee does not agree to the proposed changes in the agreement, the employer can start proceedings to seek approval of the proposed changes. The employer must then argue that there is a weighty reason to change the agreement. Under current case law, weighty reasons are almost never acknowledged. Only cases in which the employer has dealt with a large reorganisation or an enormous decline in revenue seem to qualify as weighty reasons.

WORKS COUNCIL

If the employer wishes to change a collective agreement, such as a collective bonus agreement, with all employees or a large group of employees, the employer may consult the works council to request permission for the proposed change. If the works council grants permission, that does not entail permission to change an indivual agreement yet. Whether a proposed change in a collective agreement is allowed on an individual level, need to be assessed at the individual level.

OBLIGATION TO COMPLY?

Obviously, it is always up to the employee to agree or disagree to a proposed change in the employment agreement. Under very specific circumstances, an employee may be obliged to agree to a proposed change in the employment agreement due to the obligation to act as a good employee. Under this obligation, the employment agreement can be changed even without a section granting the employer the right to change the agreement. The employer will have to make a reasonable proposal for changing the agreement. A change of the agreement under these circumstances can occur when the employee has been absent for a long period of time (e.g. due to illness) and his position has been fulfilled by another employee. Under those circumstances, the employer may propose to change the position of the returning employee, even if the change goed along with a decrease in salary. The employer will have to compensate the decrease by providing a temporary suppletion in salary, before the decrease kicks in.

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