A distinction must be drawn as to whether or not the employment contract includes a clause which enables the employer to transfer the employee to another work position.
A clause providing for a change of position is included in the employment contract
In the exercise of his managerial authority, the employer may without further formality assign the employee to another work position or other functions, provided however that there is no change to the qualifications and remuneration of the employee.
In those circumstances, the clauses granting the employer the right to transfer the employee to another work position are accepted by the case law.
Also permitted are clauses which provide for the alternating performance of two activities.
For evidential reasons, it is useful to formalise the change of work position by the signing of an addendum to the employment contract.
The employment contract does not include a clause providing for any change of position
If the employee does not oppose a change of position or function, the parties may formalise their agreement by signing an addendum to the employment contract.
In the absence of agreement on the part of the employee, everything depends on whether or not the change of position or function may be classified as a substantial change to the employee’s employment contract detrimental to him.
If the change of position or function does not constitute a substantial change to the employment contract detrimental to the employee, the change of position or function may be notified in writing, without further formality.
On the other hand, if the change of position or function constitutes a substantial change to the employment contract detrimental to the employee, the change of position or function must be notified in the same way and within the same time-limits as in the case of dismissal with prior notice, or, in the case of serious grounds, in the same way and within the same time-limits as in the case of dismissal with immediate effect.
Example of a change of function
The recruitment of an employee as a cook and as a waiter.
Where, despite maintenance of the qualification and remuneration, the amendment profoundly changes the importance of the function entrusted to the employee, this may be regarded as an abuse of the law in the exercise of the right to change working conditions.
In the present case, an employee had been taken on as a hairdresser and manager of a hairdressing salon, but the Court held that “by deciding to assign the employee to an ordinary hairdresser’s post, a post provided for in both the employment contracts presented to her, (the employer) changed an essential clause of her employment contract insofar as she was demoted from an executive function to a subsidiary function, even though her remuneration remained the same.”
According to the case law, the downgrading of an employee through the loss of all or part of his responsibilities constitutes a change to an essential condition of his employment contract detrimental to him.
Example of a change of position
The view has been taken in the case law that a demotion from an employee’s previous position constitutes a substantial change to the employment contract.
In the event of litigation between the parties, it will be up to the employment courts to determine whether the change in position or function is to be considered a substantial or non-substantial change to the employment contract.