An employer may reserve the right to change or revoke the terms of employment later when entering into an employment contract with an employee. This is called a unilateral amendment clause and is determined in writing in the employment contract.

Amendment clause requirements

Reliance on a unilateral amendment clause is likely if the employer has such a compelling interest in changing the terms of employment that that prevails over the interests of the employee who is harmed by the change.

Basic premises

Although the ‘Van der Lely/Taxi Hofman’ judgment shows that an employee is obliged to agree to a reasonable change to his job due to changed circumstances, it is not possible to make a change to the terms of employment without the employee’s consent. This is shown by the ruling of the sub-district court of Rotterdam dated 5-6-2015, ECLI:NL:RBROT:2015:3952.

Case

In this case, the employer wanted to change the job, working hours and salary (because of a reorganisation) without the employee’s consent. A unilateral amendment clause had not been included in the employment contract.

Good employership

Since no unilateral amendment clause had been included in the employment contract, the principle of good employership was applied and the criteria of the Stoof/Mammoet judgment of the Supreme Court of 2008 were also applied. On the basis of that judgment, it must first be established whether the employer, as a good employer, has been able to make a proposal to amend the terms of employment and whether the proposal it made is reasonable given the changed circumstances that gave rise to the proposal, the far-reaching nature of the proposal, the position of the employee and his interest in the terms remaining the same. The requirements for this are strict.

The findings

In this case, the sub-district court found that the employer had not met the above criteria. The change to the terms of employment was so far-reaching for the employee that the poor financial circumstances of the employer were insufficient to justify the change. According to the sub-district court, the position that the employee had been given after the reorganisation was not suitable either.

Conclusion

This ruling shows that, in the absence of a proper amendment clause, it is not possible to implement a unilateral change of job. The change must meet several criteria before it can be implemented. In practice, it is not possible simply to require the employee to agree to a proposal to change his terms of employment, since the words ‘reasonable proposal’ are subject to strict requirements. Whether an employee has to agree to a unilateral change of job, therefore depends entirely on the situation.

Advice

Does your employer want to change your job? Then you need to get advice from an employment law specialist. Contact Arbeidsrecht Amsterdam on 020-3584007 or fill out the contact form.

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