Can you change an employment contract unilaterally?

Russell Advocaten B.V.
Amsterdam, Netherlands

Can the employer change an employment contract unilaterally? Does it make any difference if you have agreed to a unilateral change clause?

One of the arrangements you can make in an employment contract is that as an employer you have the right to unilaterally change terms and conditions of employment. Without such a clause, you may not, in principle, change the employment contract without the employee's consent.

In practice, it is also possible to unilaterally change the terms of employment without a unilateral change clause, but in that case it is much more difficult. And even if you have agreed on a unilateral change clause, this is not a licence to arbitrarily change arrangements made.

When can the employer invoke a unilateral change clause? What will change if you do not agree on such a clause? Which matters may you change unilaterally? And when is that allowed?

When can you unilaterally change terms of employment?

An employer can only successfully invoke a unilateral change clause if the following four conditions are met:

1. The unilateral change clause has been agreed in writing
The unilateral change clause cannot be agreed orally. The clause must therefore be in writing, either in the employment contract or in a collective agreement or any other document that is part of the employment contract, such as a staff manual or a lease arrangement. In addition, the employee must have agreed to the clause.

2. The change concerns terms and conditions of employment that are included in the contract
The clause does not provide the employer with the opportunity to add new terms and conditions of employment, only to change existing arrangements. Although it is not ruled out that primary terms and conditions of employment (salary) can be changed unilaterally, in practice this will concern mainly terms and conditions of employment such as a leave scheme or travel expenses.

3. The employer must have a substantial interest in the change
A substantial interest of the employer can be a commercial or organisational interest. This could involve, for instance reduction of the operational costs or restructuring. In general, it is assumed that the employer does have such an interest if the works council has approved the change. Without this approval, it will be difficult for the employer to demonstrate a substantial interest in the change.

4. The interest of the employer outweighs the interest of the employee
When the employer has taken the abovementioned three hurdles, finally, there will be a balancing of interests. The interest of the employer in the change must be such that the interest of the employee in maintaining the existing situation must give way.

Changing terms and conditions of employment without unilateral change clause

If no unilateral change clause has been included in the employment contract or collective agreement, the employer has to rely for changes on the employee’s approval. However, in some cases the employer can unilaterally change the agreement. In accordance with the law, an employee has to behave as a good employee. Therefore, he can only reject a reasonable proposal from his employer if he cannot reasonably be expected to agree to the change.

The main difference is that in case of a unilateral change clause, the employee will have to demonstrate that the employer has wrongly invoked it. If there is no such clause, the burden of proof shall lie with the employer. He will have to prove that the proposal is reasonable and that the employee cannot simply reject it. In addition, the employer must indicate the changed conditions on the basis of which he, as a good employer, wishes to change the employment contract.

Our advice

Include a unilateral change clause in an employment contract.
Consult with the works council or trade unions on changes to the terms and conditions of employment.
Ask for legal advice if you want to change an employment contract unilaterally.

More information

Would you like us to draft a unilateral change clause? Or do you want us to assess your standard employment contracts? Please contact us.