The procedure referred to in Article L. 121-7 of the Labour Code must be complied with by the employer only if the following two conditions are met:
- the planned change is detrimental to the employee; and
- the change affects a substantial clause of the employment contract.
If the employer has genuine and serious reasons to justify the change and the employee does not consent to the change, the employer must observe the same procedure as in the case of dismissal with prior notice.
The employer must therefore notify the employee of the changes by registered letter, indicating the date on which they are to take effect and giving notice of a period equal to the notice period to which the employee would be entitled in the case of dismissal with prior notice.
If the employer is obliged to hold a pre-dismissal interview, the change with prior notice must be notified no earlier than the day following that of the pre-dismissal interview and no later than 8 days after that interview (unless the applicable collective work agreement lays down other time-limits).
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.
The employer is not obliged to set out the reasons for the change in the same letter.
Within a period of one month, the employee may, by registered letter, ask the employer to state the reasons for the change.
The employer will then be required to set out precisely the genuine and serious grounds in the form and within the time-limits laid down for a statement of reasons for dismissal with prior notice (registered letter and time-limit of one month).
The grounds underlying the change may relate:
- to the aptitude of the employee = personal grounds;
- the conduct of the employee = personal grounds; or
- the operating needs of the undertaking, the establishment or the service = economic grounds.