Where the employee rejects the substantial change of his employment contract made in compliance with the procedure, he must bear the consequences of his refusal, that is to say leave his job and resign before the entry into force of the substantial change to his employment contract. In such case, by virtue of a legal fiction, the termination of the employment contract triggered by the employee’s refusal to accept the change notified to him is regarded as constituting a dismissal against which legal proceedings may be brought for unfair termination of the employment contract.
In cases where an employee resigns, it has been held in the case law that “(…) the resignation [of the employee] is to be regarded, according to law, as an unfair dismissal entitling him to have recourse to the remedies provided for in Article L. 124-11”. The employee may then bring legal proceedings to have the dismissal (= the substantial change) declared to be unfair and claim redress.
If an employee challenges the reasons underlying the change in accordance with the prescribed forms and time-limits, it will be incumbent upon the labour courts to verify whether the employer had precise, real and serious reasons for reviewing the contract to the detriment of the employee.
Where the judges consider that the reasons for the review put forward by the employer are not in conformity with the legal requirements, the change is to be re-classified as an unfair dismissal as from the date of entry into force of the change (with immediate effect or at the end of the period of notice) and the employer may be ordered to pay compensation to the employee for lack of notice and damages.