Modification of the employment contract: possible?

Economic and personal circumstances change frequently during a career, and these can lead the employer to revise the employment contract. Often the employer will use this option to avoid redundancy.

This can have not insignificant consequences. The employer cannot make working conditions less favourable by unilaterally changing a contract. Specific procedures need to be respected. The steps for modifying an employment contract, or changing a key clause in the employment contract, are governed by article L.121-7 of the Labour Code.

  1. Modification of the employment contract by common consent

Virtually everything is possible if there is agreement between the employer and employee. Thus once an employee puts its signature to a document, he cannot easily go back on this decision. This also applies when an employment contract is being revised. If the employer would like to make a change, and this would put the employee at a disadvantage, and the employee accepts, then no action can be taken to change this after joint agreement has been reached. However, a change in a contract such as this can only happen with agreement, normally after negotiations. The employer cannot act alone to change a key clause in the employment contract.

2. Modification of a secondary condition (“clause accessoire”)

It is important to note that the employer can always modify the employment contract in the employee’s favour, or make changes on so-called “secondary conditions” (known as “clauses accessoires” in French). A secondary condition is defined as a clause that is not important for either party at the time of signing the contract, or a clause featuring a certain degree of flexibility. An example of a flexible clause is a mobility clause, or clause that features a form of words such as “can be modified according to the needs of the employer/company”. This form of words will render flexible any clause that could be considered to be essential. Thus a revision by the employer is defined as them exercising their management power. The employee must accept this change and continue to carry out their employment contract in good faith.

Thus, if any particular clause in the contract needs to be identified as important, this must be made explicit in the employment contract. For example, this could be done by stating something such as: “the present clause is to be considered to be an essential clause” or “important for the signatories”.

3. Unilateral modification of an essential clause of the employment contract in disfavour of the employee

Clauses that can be considered as essential to the employment contract include the place of employment, working times, the job title and the related role, the salary, and more.

The salary or any other part of remuneration is always judged to be an essential part of the employment contract. As for the place of employment, working times, and the job title, one must refer to the terminology used in the contract to ensure that this is not classed as a secondary condition.

Working times are, in principle, only viewed as constituting an essential clause if this change would have major repercussions on private life, such as being required to work on a Sunday, for example.

As for the place of work, if the contract contains a mobility clause then a change of work place is not always a substantial modification.

If the employer wants to change a contract, then they may be required to carry out a preliminary interview. Every employer with more than 150 employees must invite the concerned employee by registered letter to a preliminary interview. For the banking sector, this number is reduced to 100 by the collective agreement. In the insurance sector, it must always be proceeded with such a preliminary meeting.

If you need advice about matters such as this, the lawyers in our Legal Department are available to offer you support. Feel free to contact them at legal@aleba.lu

4. The procedure

The procedure to be respected by the employer varies depending on the reasons for seeking to modify the contract: