Amending an employment contract

This page was last modified on 24-10-2014

An employer may modify the conditions governing a working relationship unilaterally and at any time.

As a general rule, amending 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 concerns an essential clause in the employment contract. In order to protect salaried workers' rights, the amendment of an essential clause to the disadvantage of the salaried worker is subject to a number of formalities which must be complied with by the employer.

Amendments can be made to both a permanent employment contract and a fixed-term employment contract.

In principle, any amendment to an employment contract must be drawn up in writing (addendum to the employment contract) in duplicate and a copy given to the salaried worker and 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 clause, 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 clause, 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 clause of the employment contract, the employer must follow a well-defined procedure before drawing up an addendum to the contract.

How to proceed

Amending work contracts

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

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

Neutral or favourable amendment of a clause of the employment contract

If the amendment is neutral or in the salaried worker's favour (for either an essential or ancillary clause), it may be applied without notice and without the consent of the salaried worker.

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

Favourable or neutral amendments to a clause of the employment contract must be made by means of an addendum to the employment contract, drawn up in duplicate and signed by the two parties, with one copy given to the salaried worker at the latest on the date the amendments in question take effect. However, even if the salaried worker refuses to sign the addendum, the amendment takes effect and the salaried worked is obliged to accept the amendment to his 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 of the salaried worker with notice or with immediate effect.

Unfavourable amendment of an ancillary clause of the employment contract

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

  • it concerns an element to which the parties clearly did not attach any great importance when signing the employment contract;
  • the employer and the salaried worker foresaw in the employment contract the possibility of a subsequent amendment (for example, the employment contract may 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 great importance to a particular salaried worker at the time the contract is entered into, whereas, for another salaried worker, this same element may be considered an ancillary element.

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

  • working hours, if the contract stipulates that these hours may be amended in accordance with the requirements of the business;
  • place of work (place of employment), particularly when the contract includes a geographical mobility clause, except where the parties have deemed this an element of importance (for example, if it is clearly indicated in the employment contract that the place of work is an essential element of the contract);
  • the nature of the tasks to be assigned to the salaried worker, provided that these tasks are in line with the salaried worker's qualifications and skills.

An amendment to an ancillary clause of the employment contract which is unfavourable to the salaried worker must be made by means of an addendum to the employment contract, drawn up in duplicate and signed by the two parties, with one copy given to the salaried worker at the latest on the date 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 is obliged to accept his amended working conditions.

If the salaried worker refuses to comply with the new working conditions (for example, if he 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 of the salaried worker with notice or with immediate effect.

Unfavourable amendment of an essential clause of the employment contract

An essential clause is a clause regarding an element considered to be of great importance to the parties at the time the contract is entered into.

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

  • clauses concerning the remuneration of the salaried worker, i.e. any reduction in base pay and/or reduction or elimination 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 remuneration 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 working time, as any reduction or increase in 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. adding a non-competition clause which restricts the salaried worker's liberty in the future.

The concept of an essential clause of a contract is subjective. An element of an employment contract may be of great importance to a particular salaried worker at the time the contract is entered into, but for another salaried worker this same element may only be considered as ancillary (change in the place of work, for example).

When the amendment to the employment contract is unfavourable to the salaried worker and concerns an essential clause of the contract which is not accepted by the salaried worker, the employer must announce the amendment to the salaried worker using the same procedures as for a dismissal:

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

For businesses with more than 150 employees, the employer must invite the salaried worker to an 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 to the salaried worker his intention to significantly amend the employment contract in a manner unfavourable to the salaried worker. Written notification of the amendment may be given to the salaried worker at the earliest on the day after this interview and at the latest 8 days after.

Salaried workers who are protected against dismissal (such as pregnant women, salaried workers on parental leave or leave for family reasons and staff delegates) may not have their employment contracts significantly modified in a manner unfavourable to them throughout the entire period they are protected. As a significant amendment to an employment contract is considered as similar to dismissal, it must be considered null and void if it concerns protected salaried workers. Salaried workers on parental leave may only have their employment contracts significantly amended due to serious misconduct.

Amendment with a notice period

An amendment to the employment contract for reasons other than serious misconduct must be notified to the salaried worker in accordance with the same procedures and deadlines as for dismissal with a notice period.

The employer must notify the salaried worker of the amendment to his employment contract in writing, stating the date on which the amendment takes effect. The notification must be sent by registered letter with acknowledgement of receipt or given directly to the salaried worker against signature.

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

In principle, the notice period will be 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 his employment contract is to be significantly amended, the salaried worker may:

  • accept the amendment: by signing the addendum to his employment contract proposed by the employer, or by continuing to come to work after the amendment has come into effect, which means that he is obliged to abide by it;
  • ask to be informed of the reasons behind the amendment within a period of one month of receipt of the letter announcing the amendment to his working conditions. The employer is then obliged to reply by registered letter within one month of receipt of the request to be informed of the reasons, stating the precise reasons for the amendment of the salaried worker's working conditions. The salaried worker may then decide to accept the significant amendment to his employment contract or to resign;
  • refuse to accept the amendment by resigning before the end of the notice period (regardless of whether or not he has asked to be informed of the reasons). If the salaried worker merely objects to the amendment but does not resign, he will be considered to have accepted the amendment.
    The resignation is considered to be a dismissal with notice and the salaried worker may initiate legal proceedings for unfair dismissal. The labour tribunal will examine, in this case, the validity of the significant 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 here between the employer's possible failure to comply with the notification procedure to the salaried worker and the absence of grounds for the significant amendment:

  • if the notification procedure is not complied with, the amendment to the contract becomes null and void.
    The salaried worker may protest against the amendment and refer to the labour tribunal to confirm that it is null and void and, once he has this confirmation, return to work as if the amendment had never been made. However, in order to have the amendment declared null and void by the tribunal, the salaried worker must still be employed in the employer's company;
  • should the significant amendment lack serious grounds, the employer must bear the consequences of a dismissal being declared unfair.
    If the reasons for the amendment are not notified to the salaried worker within the deadline or if these reasons are not precise, this generally gives grounds for the dismissal or amendment being declared unfair. However, if the salaried worker does not ask to be informed of the reasons, the burden of proof is incumbent upon him and he will have to prove that the amendment is not based on real and serious reasons.

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 dismissal with immediate effect.

The employer may:

  • notify the salaried worker immediately of the amendment to the employment contract with immediate effect;
  • or first announce a suspension 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 giving the notification directly to the salaried worker against signature. 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 continuing to work after the amendments have taken effect; he is then considered to have accepted them;
  • refuse to accept the amendment: he must then resign.
    If he simply objects to the amendment but does not resign, he is considered to have accepted the amendment. The resignation is considered to be a dismissal with immediate effect and the salaried worker may initiate legal proceedings for unfair dismissal. The labour tribunal will examine, in this case, the validity of the significant amendment to the employment contract and may, where applicable, oblige 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 here between the employer's possible failure to comply with the notification procedure to the salaried worker and the absence of grounds for the significant amendment:

  • if the notification procedure is not complied with, the amendment to the contract becomes null and void.
    The salaried worker may protest against the amendment and refer to the labour tribunal to confirm that it is null and void and, once he has this confirmation, return to work as if the amendment had never been made. However, in order to have the amendment declared null and void by the tribunal, the salaried worker must still be employed in the employer's company.
  • should the significant amendment lack serious grounds, the employer must bear the consequences of a dismissal being declared unfair.
    If the reasons for the amendment are not notified to the salaried worker within the deadline or if these reasons are not precise, this generally gives grounds for the amendment being declared unfair. However, if the salaried worker does not ask to be informed of the reasons, the burden of proof is incumbent upon him and he will have to prove that the amendment is not based on real and serious reasons.