Amendment of an employment contract

This page was last modified on 11-03-2016

The essential terms of work contracts cannot be amended unilaterally to the disadvantage of the members of the staff delegation, both regular and substitute staff representatives, and of the safety officer, during their term of office.

As far as the other categories of employees are concerned, employers may, in principle, modify the conditions governing a working relationship unilaterally and at any time..

As a general rule, the amendment of the working conditions is not subject to any formality except where the employer chooses to amend the employment contract to the disadvantage of the salaried worker and where the envisaged amendment changes essential terms in the employment contract.

In order to protect the salaried workers' rights, the change of essential terms to the disadvantage of the salaried worker is subject to a number of formalities which must be complied with by the employer.

The changes can be made to permanent contracts (CDI) and to temporary contracts (CDD).

In principle, any amendment to an employment contract must be drawn up in writing (addendum to the employment contract) in 2 copies, one copy for the salaried worker and one for the employer respectively, at the latest on the date the amendments take effect.

There are various scenarios for the amendment of an employment contract:

  • if the amendment is neutral or favourable to the salaried worker and relates to an essential term, it can be applied without the salaried worker's consent after an addendum to the contract has been drawn up;
  • if the amendment is neutral, favourable or unfavourable to the salaried worker and relates to an ancillary term, it may be applied without the salaried worker's consent after an addendum to the contract has been drawn up;
  • if the amendment is unfavourable to the salaried worker and relates to an essential term of the employment contract, the employer must follow a well-defined procedure before drawing up an addendum to the contract.

How to proceed

Contract addendums

Whether an addendum is favourable to the salaried worker or not, any change to one of the elements of the employment contract must be implemented by means of a written addendum to the employment contract.

The addendum must be drawn up in 2 copies with one copy for the employer and one for the salaried worker.

Neutral or favourable change of the terms of the employment contract

If the amendment is neutral or in the salaried worker's favour (whether essential or ancillary terms), it can be implemented without notice and without the salaried worker's consent.

Employers may unilaterally decide to amend an essential clause in favour of or with a neutral effect on the salaried worker, without having to follow any particular procedure or deadlines. Therefore, in this case, the employer is not required to notify the salaried worker in writing in advance of his intention to amend the contract.

Favourable or neutral amendments to the terms of the employment contract must be made by means of an addendum to the employment contract, drawn up in 2 copies and signed by the 2 parties, where one copy is given to the salaried worker on the date, at the latest, the amendments in question take effect.

However, even if the salaried worker refuses to sign the addendum, the amendment takes effect and the salaried worker can only accept the new working conditions.

If the salaried worker refuses to comply with the new working conditions, this may be construed as a refusal to work or to comply with orders and may, depending on the circumstances, be subject to sanctions which could go as far as dismissal with notice or with immediate effect.

Unfavourable change of ancillary terms of the employment contract

A clause in the employment contract is deemed to be ancillary if:

  • it concerns an element which the parties clearly did consider to be of decisive importance upon signature of the employment contract;
  • the employer and the salaried worker have foreseen the possibility of a subsequent amendment (e.g. the employment contract can stipulate that the salaried worker's assignments may vary in accordance with the needs of the business and the salaried worker's skills).

An element of the employment contract may be of decisive importance to a particular salaried worker at the time the contract is entered into, whereas, for another one, this same element may be less important.

For example, the following may be considered to be ancillary clauses:

  • the work hours, if the contract stipulates that the hours can change in accordance with business requirements;
  • place of execution of the work (workplace), in particular when the contract includes a geographical mobility clause, except where the parties have made this an element of importance (e.g. it has been clearly stipulated in the employment contract that the place of execution of the work is an essential term of the contract);
  • the nature of the tasks assigned to the salaried worker, provided that these tasks are in line with the salaried worker's qualifications and skills.

Unfavourable amendments to the salaried worker of the terms of the employment contract must be made by means of an addendum to the employment contract, drawn up in 2 copies and signed by the 2 parties, where one copy is given to the salaried worker on the date, at the latest, the amendments in question take effect.

Even if the salaried worker refuses to sign the addendum, the amendment takes effect and the salaried worker can only accept the new working conditions.

If the salaried worker refuses to comply with the new working conditions (for example, if he/she continues to work his former working hours even though his working hours have been changed), this may be construed as a refusal to work or to comply with orders and may, depending on the circumstances, be subject to sanctions which could go as far as dismissal with notice or with immediate effect of the salaried worker.

Unfavourable amendment of essential terms of the employment contract

An essential term is a clause concerning an element which is considered to be of decisive importance to the parties at the time the contract is concluded.

As a general rule, the following in particular are considered to be essential terms:

  • clauses concerning the remuneration of the salaried worker, i.e. reduction in base salary and/or reduction or cancellation of fringe benefits. However, a change in the calculation method of the salary is not necessarily an essential amendment as long as the overall salary level is maintained and the new calculation method is favourable to the salaried worker;
  • clauses concerning the qualification of the salaried worker, in particular if the worker is downgraded to a function corresponding to a lower level of qualification, even if the salary remains unchanged. Also, if an employee is demoted from a managing position to a subordinate position, this is considered to be an essential amendment in the terms of the employment contract which is unfavourable to the employee. However, a simple transfer from one function to another or from one department to another, with no change in qualification or remuneration, is not considered to be an essential amendment;
  • clauses concerning the working time as any reduction or increase in the duration of the working time is likely to impact the level of remuneration.
    A change in the working hours is not generally considered to be an amendment of an essential clause of the employment contract, especially if it contains a clause stipulating that the working hours are flexible and may vary depending on the needs of the business;
  • non-competition clauses, i.e. the addition of a non-competition clause which restricts the salaried worker's freedom in the future.

The concept of essential term of a contract is subjective. An element of an employment contract can be of great importance to a particular salaried worker at the time the contract is concluded, but for another salaried worker this same element may have less importance (e.g. a change in the place of work).

If an amendment in the employment contract is unfavourable to the salaried worker and if it changes an essential clause of the contract which is not accepted by the salaried worker, the employer must announce said amendment to the salaried worker through the same procedure as with a dismissal:

  • either by giving a notice period;
  • or with immediate effect if there are serious grounds that justify the amendment.

In businesses with more than 150 staff, the employer must call the salaried worker to a preliminary interview before amending his employment contract, regardless of whether it is being amended with immediate effect or with notice. During this interview, the employer must explain his intention to significantly amend the employment contract to the salaried worker's disadvantage. Written notification of the amendment may be given to the salaried worker at the earliest on the day after and at the latest 8 days after the preliminary interview.

Employment contracts cannot be significantly modified to the disadvantage of salaried workers who are protected against dismissal (such as pregnant women, salaried workers on parental leave or leave for family reasons and staff delegates) during the whole period of time where the protection is effective. As a significant amendment to an employment contract is considered to be similar to a dismissal, it is deemed null and void if it applies to protected salaried workers. Salaried workers on parental leave may only have their employment contracts significantly amended due to serious grounds.

Amendment with a notice period

An amendment to the employment contract without serious grounds must be notified to the salaried worker with the same procedure and deadlines as a dismissal with a notice.

The employer must inform the salaried worker of the amendment to his employment contract in writing, stating the date on which the amendment takes effect. The notification is carried out:

  • by registered letter with acknowledgement of receipt;
  • or by delivery in person against signature on receipt.

The duration of the notice period before the amendment takes effect depends on the salaried worker's seniority.

In principle, the notice is:

  • 2 months for salaried workers with a continuous length of service of less than 5 years;
  • 4 months for salaried workers with a continuous length of service of between 5 and 10 years;
  • and 6 months for salaried workers with a continuous length of service of at least 10 years.

If an employment contract is to be significantly amended, the salaried worker can:

  • accept the amendment by signing the addendum to the employment contract as proposed by the employer, or simply continue to come to work after the amendment entered into effect which is then imposed on him/her;
  • request the reasons behind the amendment within a period of one month of receipt of the letter announcing the amendment to the working conditions. The employer is obliged to reply by registered letter within one month of receipt of the request and must state the precise reasons for the amendment of the salaried worker's working conditions. The worker can then decide to accept the substantial amendment to the employment contract or resign;
  • refuse the amendment by resigning before the end of the notice period (with or without requesting the reasons). Salaried workers who merely object to the amendment but do not resign, are considered to have accepted said amendment.
    The resignation is considered to be a dismissal with notice and the salaried worker can take legal action for unfair dismissal. In this case, the labour tribunal will examine the validity of the substantial amendment to the employment contract and may, where applicable, oblige the employer to pay damages to the salaried worker for unfair dismissal if the amendment is not justified.

A distinction must be made between the employer's possible failure to comply with the notification procedure and the absence of grounds for the substantial amendment:

  • in the event of non-compliance with the notification procedure, the amendment to the contract becomes null and void.
    The salaried worker can appeal to the labour tribunal within a reasonable deadline and have them declare the invalidity of the amendment and, once the invalidity is declared, the worker can return to work as if nothing happened. However, in order to have the amendment declared null and void by the tribunal, the salaried worker must still be employed by the company;
  • if there is no valid reason for a substantial amendment, the employer will suffer the consequences for unfair dismissal.
    If the reasons for the amendment are not notified to the salaried worker within the legal deadlines or are not detailed enough, the dismissal or substantial amendment will generally be qualified as unfair. However, if the salaried worker does not request the reasons, the burden of proof becomes incumbent upon him and he/she will have to prove that the amendment is not based on real and serious grounds.

Amendment with immediate effect

An amendment with immediate effect must be notified to the salaried worker in accordance with the same procedures and deadlines as for a dismissal with immediate effect. This is usually decided by the employer if the salaried worker has been found guilty of serious misconduct.

The employer may:

  • immediately notify the salaried worker of the amendment to the employment contract with immediate effect;
  • or suspend the worker at first and then notify the amendment of the employment contract. The notification of the amendment can occur at the earliest on the day following the announcement of the suspension and at the latest 8 days after the suspension.

The employer must notify the salaried worker of the amendment to his employment contract in writing:

  • by registered letter with acknowledgement of receipt;
  • or by delivery in person against signature on receipt.

The letter notifying the amendment to the salaried worker must explain in detail the serious reason(s) that prompted the employer to make such a change.

The salaried worker may then:

  • accept the amendment by signing the addendum or continue to work after the amendments have entered into force, the worker is then considered to have accepted them;
  • refuse the amendment and resign.
    If the worker simply objects to the amendment but does not resign, he/she is deemed to have accepted the amendment. The resignation is considered to be a dismissal with immediate effect and the salaried worker can take legal action for unfair dismissal. In this case, the labour tribunal will examine the validity of the substantial amendment to the employment contract and may, where applicable, sentence the employer to pay damages to the salaried worker for unfair dismissal if the reasons for the amendment with immediate effect are not considered to be justified.

A distinction must be made between the employer's possible failure to comply with the notification procedure and the absence of grounds for the substantial amendment:

  • in the event of non-compliance with the notification procedure, the amendment to the contract becomes null and void.
    The salaried worker can appeal to the labour tribunal within a reasonable deadline and have them declare the invalidity of the amendment and, once the invalidity is declared, the worker can return to work as if nothing happened. However, the invalidity action requires that the salaried worker is still employed by the company;
  • if there is no valid reason for a substantial amendment, the employer will suffer the consequences for unfair dismissal.
    If the reasons for the amendment are not notified to the salaried worker within the legal deadlines or are not detailed enough, the dismissal or substantial amendment will generally be qualified as unfair. However, if the salaried worker does not request the reasons, the burden of proof becomes incumbent upon him and he/she will have to prove that the amendment is not based on real and serious grounds.