In the absence of agreement on the part of the employee, the employer may impose on him a change to his employment contract.
A distinction must be drawn as to whether the envisaged change affects an essential element of the contract and whether or not it is detrimental to the employee.
By signing the employment contract, the employee accepts the authority of the employer and consequently is deemed to agree to any changes made to his employment contract during its performance, provided that such changes do not undermine the rights established for his benefit by the employment contract.
Unilateral amendment of an ancillary clause of the employment contract
In the event of changes to ancillary clauses of the employment contract (that is to say, clauses which are not essential for the employee or clauses which provide for the possibility of a modification), the procedure to be followed by the employer is simple and the employee has no special right of appeal if he disagrees with the changes made.
A change to an ancillary clause of the employment contract made by the employer must be made:
- in writing;
- in duplicate; and
- no later than on the effective date of the planned change.
Amendment of a substantial clause of the employment contract
A distinction must be drawn, depending on whether or not the change is detrimental to the employee.
Any change to an employment contract which is detrimental to the employee and relates to a substantial and essential clause of the employment contract, is a substantial amendment to the employment contract within the meaning of Article L. 121-7 of the Labour Code and must be notified to the employee in the same way (registered letter) and within the same time-limits as if the employer was dismissing the employee.
In fact, the procedure under Article L. 121-7 of the Labour Code concerns only changes that are detrimental to the employee. That procedure allows the employer to unilaterally amend the employment contract and constitutes an alternative to dismissal. Instead of dismissing an employee, whether for economic or disciplinary reasons, the employer maintains the employment relationship but on different conditions (cf. D1c9 to D1c10).
The burden of proving the unilateral amendment to the detriment of the employee is incumbent upon the latter. According to settled case law, it is not sufficient for the employee to feel that the change made is prejudicial, but an objective disadvantage must derive from the change.
An amendment to an essential clause of the employment contract made by the employer to the detriment of the employee must be assessed taking account of his circumstances as they prevailed before the change was made.
By contrast, a change to the employment contract affecting a substantial clause of the employment contract, but which is not detrimental to the employee (for example, promotion), may be recorded:
- in writing;
- in duplicate; and
- no later than on the effective date of the changes.