Under French law, the ability of an employer to alter the terms and conditions of employment of its employees is very restricted. It is generally necessary for the employer to obtain the consent of the employee if it wishes to implement a change in his/her terms and conditions of employment. The principle and procedure applicable to such changes are set out below (subject however in any case to any applicable collective bargaining agreement, which may contain specific provisions in such respect).
Change in the terms of employment: principle
In this respect, a very important distinction must be made between the modification of the employment contract, which requires the employee’s prior written consent, and a change to the employee’s working conditions which can be effected without the consent of the employee concerned.
In practice, a modification of the employment contract would be deemed to occur if it concerns the content of the employment contract in itself such as remuneration, duties, working time, etc. Conversely, a change in the employee’s working conditions such as a modification of the working hours will generally not be viewed as a modification of the employment contract. This is naturally subject to the relevant employee’s contractual terms and conditions.
Moreover, the obligation to obtain the employee’s consent cannot be circumvented by stipulating in the employment contract that certain provisions will not be considered as essential and may, as a result, be unilaterally amended by the employer. Indeed, case law tends to hold such clauses as null and void and requires that such type of provisions be based on objective criteria outside the control of the employer. A current exception to this tendency is the ability to provide for mobility clauses under which the parties agree that the place of work may be changed by the employer (such clause being valid provided that it complies with a certain number of conditions including the limitation of its geographical scope).
Change in the terms of employment: procedure
No specific procedure is applicable to the modification of the employment contract (as opposed to a simple change in the working conditions) when contemplated for personal reasons. Nevertheless, it is generally recommended to formalise the employee’s agreement in an amendment to his/her employment contract and to leave him/her a reasonable notice period to consider the modification.
On the contrary, should a modification of the employment contract be envisaged for economic reasons, legal rules require compliance with a specific procedure, failure to adhere to which renders the modification unenforceable:
– the employer must propose the modification by registered letter with acknowledgment of receipt including the details of the proposed modification and giving the employee one month to consider it;
– if the employee does not reply within such time period, he/she is deemed to have accepted the modification.
In any case for both types of modification, the mere refusal of an employee to accept the change to his/her employment contract does not constitute in itself a valid ground for dismissal. Moreover, any change of contract implemented without the employee’s consent is unenforceable and can trigger the risk of the employee claiming the equivalent of constructive dismissal (having the same effects as an unfair dismissal).