Modifications covered

What changes are subject to compliance with the legal procedure? 

The procedure for revising the employment contract does not apply in all cases. It only applies if the following two conditions are met cumulatively: 

• the change is unfavourable to the employee;

If the change is neutral or favourable to the employee, it can be applied overnight without being subject to any particular formality. 

• the change concerns an essential element of the employment relationship.

The concept of changing an essential element is explained in more detail in the next question. 

What is meant by a change to an essential element of the employment contract? 

In order to be substantial, a change must relate to an element of the contract which the parties considered essential at the time it was concluded, i.e. an element which may have caused them to enter into the contract. 

Conversely, the modification is only incidental, either when it concerns an element that is not a determining factor of their will, or when the parties had foreseen from the outset the possibility of a subsequent amendment. In the latter case, the employee must comply.  

In general, the following changes are to be considered essential and therefore subject to the procedure stipulated by law: 

• Changes to remuneration;

Any change to the base salary as well or to its supplements is considered substantial and are subject to the legal procedure. 

However, a change in the method of calculating pay is not necessarily an essential change as long as no change in pay is introduced and the new method is favourable to the employee. 

• Changes to qualification;

Downgrading, i.e. being assigned duties corresponding to a lower qualification, constitutes a substantial change, even if the level of pay is maintained. 

However, a simple transfer from one position to another or from one department to another without affecting pay and qualifications does not trigger the legal procedure. 

• A change of the place of work may also to be considered as an essential clause of an employment contract and therefore requires compliance with the legal procedure. However, there is no essential change if the contract contains a mobility clause.

• The addition of a non-competition clause;

The addition of a non-competition clause, when the initial contract does not provide for one and which restricts the employee’s freedom for the future, is generally of a substantial nature and must therefore comply with the legal procedure. 

• Working schedule.

For all of the above, it should be stressed that: 

• If an employment contract states from the outset that working hours, place of work, etc. may vary according to the needs of the company, employees can do nothing other than agree to changes when they occur.

By signing these “flexibility” clauses, employees certify that they consider these to be non-essential aspects of their employment contract. 

• If an employee continues to work for several weeks or even months under the new regime, that person is deemed to have accepted them and can therefore no longer put forth any claim.

Procedure

What is the procedure to be followed? 

The procedure is similar to the dismissal procedure. 

Employers must announce any changes to an employee: 

• by registered letter; 
• by hand-delivering the letter to the employee, with the employee acknowledging receipt by signing the duplicate of the letter.

In companies with at least 150 employees, the employer must first call an employee to an interview. 

The change can take place after a certain period of time, which depends on the employee’s length of service (change with notice when the change is justified for reasons other than imperious reasons) or with immediate effect (in case of substantial reasons justifying the change). 

In the case of a change with notice, the employee has the entire notice period to consider whether or not to accept the change. However, it is up to the employee to request the reasons for the recommended change within one month of receiving the letter announcing the change in his working conditions. Employers are obliged to respond to this request within one month. 

In the case of a change in working conditions with immediate effect, the letter must directly state the substantial reason(s) that the employer is making such a change. 

In both cases, once the employer has followed the legal procedure, an employee has the option of either accepting or rejecting the change. 

An employee can agree and continue to work for his employer under the new working conditions. 

In contrast, an employee can reject the new working conditions and leave his job. In this case, the termination of the contract is considered a dismissal. An employee can bring an action before the Labour Court to challenge the dismissal and claim damages if the employer has abused his rights. If an employer fails to provide an employee with the reasons for a change, the change is deemed abusive and gives rise to an award of damages. The same applies if the reasons for the change are unfounded. 

It should be noted that a change made in disregard of the formalities and deadlines provided for by law is to be considered null and void (Article L. 121-7 of the Labour Code). In practice, in this case, employees are advised not to accept the changes and to continue working under the previous conditions insofar as this is possible, and/or to express his disapproval in writing. 

Staff representatives

Is it possible to impose an essential change in the working conditions of a staff representative in view of the special protection enjoyed by this person? 

The judges have ruled that this is not possible when the employee is a staff representative. 

The protection against dismissal enjoyed by staff representatives would remain illusory if the employer could unilaterally modify the essential conditions of their employment contracts and restrict their freedom of action by this means of pressure. 

In the opinion of the judges, the modification of the essential conditions in a way that is unfavourable to the representative is in fact equivalent to an illegal dismissal since the representative, in rejecting the change may be led to resign, a situation that is equivalent to a dismissal by the employer. 

The law dated 23 July 2015 on the reform of social dialogue within companies endorsed this position. 

Since 1 January 2016, Article L. 415-10 of the Labour Code expressly states that during their term of office, the full and alternate members of employee delegations and the safety and health representative may not be subject to a change in an essential clause of their employment contract. 

The representatives may apply to the chief magistrate of the Labour Court, who shall rule as for summary and urgent matters, with the parties heard or duly summoned, to put an end to the unilateral modification of such a clause.