Changing employment conditions: with and without an unilateral change clause

The arrangements between employees and employer regarding employment are contained in the employment contract or a collective arrangement. These agreements must be complied with, but developments may occur during employment that require certain terms of employment to be changed. For example, because of legislative developments, business changes, or if a company wants to improve in terms of sustainability and the environment. These developments may mean that, for instance, an employee’s salary, workplace, vacation days or travel allowance must be changed.

The terms of employment can generally only be changed if the employee agrees.  Nevertheless, the law also provides ways to change terms and conditions of employment without the employee’s consent. In this article, we provide information on the ways that the employer can do so.

Changing employment conditions based on an unliteral change clause

Many employment contracts include an unilateral change clause. Such a clause gives the employer the authority to change an employee’s terms of employment without the employee’s consent. However, the fact that such a clause is included in the contract does not mean that the employer may simply change the employees’ terms and conditions of employment. It follows from the law that the employer can only invoke this article if the employer can prove that it has such weighty interests that the interest of the employee must give way. 

If the employer wants to invoke the unilateral modification clause, it is also important to weigh the interests of the employer and the employee against each other. For example, if an employer is in great financial difficulties, making the interest very important, the employer is more likely to be able to unilaterally modify an employment condition. On the other hand, the employee’s interests must also be taken into account.  If the employer wants to change more fundamental conditions of employment (e.g. salary), it becomes more difficult for the employer to do so.

Changing employment conditions without having an unliteral change clause

In principle, if an employer wants to change an employee’s individual terms and conditions of employment, but there is no unilateral modification clause in the employment contract, the employer will have to obtain the employee’s consent. Does the employee not give permission? Then the employer can invoke the employee’s legal obligation to behave as a good employee. This principle implies that an employee should behave reasonably in his contractual relationship with the employer.

When unilaterally changing employment conditions based on the principle of good employee behavior, the following conditions must be met:

• The employer makes a reasonable proposal to the employee;
• The proposal is related to changed circumstances at work;
• The employee can reasonably be required to agree to the proposal.

If these conditions are met, in principle, an employer can unilaterally change an individual employee’s conditions of employment.

Conclusion

Are your terms of employment being changed and you have not agreed? Then first check your employment contracts to see if they include a unilateral modification clause. If so, discuss what your interests are and the interests of your employer are. Is there no unilateral modification clause included? Then see if the above conditions are met. The fact that, in principle, you as an employee must respond positively to a reasonable proposal does not mean that, you cannot stand up for your interests and accept everything.

More information

If you have any questions about the legality of changing your employment conditions or need advice about your personal situation. Please feel free to contact us.