Modification of the employment contract

Notion

The employment contract is not immutable. It must be adapted to the needs of the company, the economy or the employee's availability. If the employer or the employee wishes to modify the employment contract, they must respect specific rules.

Agreement

If the conclusion of the employment contract requires the agreement of the employee and the employer, the same applies in principle to the modification of the contract. The parties must agree to modify any essential element of the employment contract.

What happens when the employer wants to change the employee's job description? Can he/she unilaterally withdraw the powers of representation of a registered attorney? How should the employee's silence regarding the employer's proposals be interpreted?

Modification leave

As a general rule, when the modification is made in favor of the employee, in particular in the case of a salary increase, the modification of the employment contract does not pose any specific problem.

The situation is more delicate when the modification is to the detriment of the employee. The employer must follow the specific procedure of the modification leave. A modification leave is a dismissal accompanied by a proposal to continue the employment relationship under modified conditions.

Content

The modification leave that is addressed to the employee must be clear and unambiguous. The employer must ensure that the modification leave contains a certain amount of information, such as the proposed changes and the consequences of refusal.

Failure to do so may result in the employer being held liable. This will be the case, for example, if the employer does not send a modification leave to the employee from the outset, but subsequently dismisses the employee because he or she refused the proposed changes. Such a procedure constitutes a reprisal leave.

Time limit

The employer must respect the employee's notice period when proposing an unfavorable change to the employment contract. Can the employer dismiss an employee because he refused to accept an immediate change in his employment contract? Or send a modification leave to a pregnant woman?

Specific problems

Can the employee waive compensation for overtime already worked or accept a retroactive pay cut?

In the event of an economic crisis, can the employer modify the contract of only cross-border workers to their disadvantage because of their increased purchasing power? Or can they be offered to pay their salary in euros?

Can the employer cancel the bonus or the thirteenth salary without the agreement of his employees?

Collective modification leave

During economic crises, it often happens that the employer is forced to reduce the salary or increase the working hours of a large part of his employees. He/she must be careful. Under certain conditions, the employer must first comply with the employee consultation procedure provided for in the event of mass redundancy before proceeding with the modification leave.

Transfer of a business

As a general rule, when a business is transferred, the employees are transferred to the new company. Can the new employer modify their employment contract without further notice? What specific rules must the old and new employers follow?

Retirement age

Whether for economic or personal reasons, employees sometimes wish to continue working after reaching retirement age. The employer must be aware that the employee's health may become fragile and that the health insurance may refuse to cover any inability to work. The employer may propose a modification of the employment contract that takes into account the employee's health.

Expatriation/secondment

Expatriation and secondment are all situations in which the employee is sent to work in another country for a specific or indefinite period of time. Employer and employee will have to agree on the terms and conditions as it is a substantial modification of the employment contract.