The penalty for failure by the employer to observe the formalities of the legal procedure prescribed in Article L. 121-7 of the Labour Code consists of nullity of the change to the essential clause of the employment contract made to the detriment of the employee.
Thus, when the employer unilaterally changes a substantial clause of the employment contract to the detriment of the employee without observing the legal procedure, the changes will be regarded as void.
It is to be noted that, by contrast with the dismissal procedure, failure to comply with the formality of a prior interview gives rise not only to “a formal irregularity” but also to the nullity of the change to the contract.
A void change does not as such give rise to automatic termination of the employment contract and the employee does not forfeit the advantages of his employment contract which he enjoyed before the change.
The nullity of the changes implies that the employer will not be able to impose them. It is then up to the employee to report for work and insist on the continuation of the employment contract as it stands. In the event of refusal by the employer, the employee will be entitled to take legal proceedings, seeking restoration to the situation as it was prior to the change and continuation of the employment relationship.
Remedies available to the employee in the event of the employer’s failure to comply with the legal procedure for substantial changes
If Article L. 121-7 of the Labour Code provides that the change which the employer wished to impose on his employee is void, nullity must nevertheless be applied for.
In fact, in the event of non-compliance with the legal procedure for unilateral change of a substantial clause to the detriment of an employee, the employee may bring proceedings for annulment of the change. The action seeks annulment of the change and is not subject to resignation by the employee.
The proceedings for annulment must be commenced “within a reasonable period” (cf. D1c12) unless it is assumed that the employee has accepted it. An employee who criticises his employer for changing the conditions of the employment contract binding them, so as to make them less favourable for him, and is challenged in that regard by the employer, must prove the reality thereof.
The action for annulment of the change seeks continuation of the employment relationship under the same conditions.
An employee who has suffered a loss as a result of a detrimental change to his employment contract will be able to claim damages, in particular in the event of illegal downgrading.
An action seeking annulment of the change is not conditional upon resignation by the employee. On the contrary, the remedy open to him seeks continuation of the employment relationship. This provision does not require the employee to cease performing the employment contract or to terminate it, while taking legal action to have the change declared null and void,
with a view to continuing performance of the unchanged employment contract.