Can an employer change working conditions without the employee's agreement?

To avoid major legal and financial problems, employers may not unilaterally make major changes to an essential element of the employment contract, such as pay, duties, location or working hours. But what if such a change is necessary because, for example, the employer is facing particularly difficult economic circumstances?  

What are the elements generally considered to be essential?

An employer may not unilaterally and significantly alter an essential element of an employment contract. If he does so, he is deemed to have immediately terminated the employment contract (implied dismissal or an act equi-pollent to termination) with all the consequences that this entails (in particular the payment of compensation in lieu of notice). In this case, the employee does not have to show that the employer had the will to terminate the employment contract.

The following elements of the employment contract are generally considered by the courts and tribunals to be essential elements:

- remuneration ;

- the function, responsibilities and hierarchical position associated with it;

- the place of work;

- working hours and working schedule.

What if the employer justifies the change in working conditions on economic grounds?

The Court of Cassation has indicated that it is only necessary to verify whether an essential element of the contract has been modified to such an extent that it cannot be considered that the original employment contract will still be performed after this modification.

The only criterion to be taken into account would therefore be whether the unilateral modification of the essential elements is significant, without having to take into account the interests of the employer and the employee. In practical terms, this would mean that a significant change in the employee's duties or remuneration would in any event be inadmissible, even if the change were justified on economic grounds, such as a period of financial difficulty faced by the employer.

What changes can an employer impose unilaterally?

An employer may unilaterally modify

– accessory elements of the employment contract;
– essential elements of the employment contract, but in a minor way.

In this respect, it is important to note that the parties may contractually provide for various modification clauses in their employment contract that allow them to introduce a certain flexibility. In practical terms, this means that the parties classify as non-essential - and therefore ancillary - certain of their terms and conditions of employment, which can then be adapted more easily (e.g. the provision of certain work tools for purely professional use, etc.). Such modifications are therefore permissible. However, these modification clauses may not concern working conditions which, by definition, are considered essential (see above).

In conclusion, caution should be exercised when an employer is contemplating a unilateral change to a condition of employment, regardless of the reason for the change.

About the author

Marjolaine Dessard – Senior Associate Claeys & Engels