Summary
No legal definition
There is no legal definition of modification of the employment contract or changes in working conditions.
It is the case law which, through its various judgments, nevertheless makes it possible to put forward two definitions depending on whether one refers to the employment contract or to the working conditions.
Modification of the employment contract
The modification of the employment contract consists in modifying an essential element or considered essential.
When modification is requested for a personal reason :
- the employer is not entitled to impose it on the employee;
- the employee is entitled to refuse;
- refusal by the employee is not a fault.
When the change is for economic reasons :
- the modification is then motivated in the interest of the company;
- it then becomes part of an economic dismissal;
- the employer is not entitled to impose it on the employee.
Changing working conditions
It is then for the judges of simple modifications of the working conditions.
This does not relate to an element deemed essential in the employment contract.
Refusal by an employee then constitutes a real and serious cause for dismissal, but not a serious fault (no dismissal for serious misconduct).
What can an employer do who wishes to modify an employment contract?
Modification for an economic reason:
- The employer notifies the employee of the desired modification of the employment contract;
- He must give the employee a period of one month to decide;
- If the employee refuses the modification before the one-month period has expired, the employer must nevertheless wait until the one-month period has expired to act;
- The employer takes note of the refusal and renounces the modification of the employment contract or pronounces a dismissal for economic reasons but in no case the refusal of the employee is to be taken into account.
Modification for a personal reason:
- The employer notifies the employee of the desired modification of the employment contract;
- He must leave the employee a “sufficient” period (the administration considered that a period of 15 days was necessary for the modification of the remuneration);
- If the employee refuses, the employer takes note of the refusal and renounces the modification of the employment contract or pronounces a dismissal for personal reason but in no case the refusal of the employee is to be taken into consideration.
Modification of the employment contract: some examples
Here are some examples of judgments that illustrate what can and cannot be done in terms of modifying the employment contract.
The judges of the Court of Cassation considered that there was a modification of the employment contract for the following cases:
- modification of the remuneration, even if the employer claims that the new calculation is more advantageous for the employee;
- change in the distribution of working hours requiring an employee to work 2 out of 3 Sundays, and no longer 1 out of 2 Sundays;
- requiring an employee to work on Saturdays;
- change from a day schedule to a night schedule;
- moving from part-time to full-time (or vice versa);
- for part-time, the employer wishes to hire 1 hour earlier.
This implies that the employer was not entitled to impose this modification on the employee, that the employee was entitled to refuse without risking a sanction.
The only solution then remained with the employer:
- to renounce the modification of the employment contract;
- to pronounce a dismissal but the reason could in no case be the refusal of the employee.
The judges of the Court of Cassation considered that there was a modification of the working conditions for the following cases:
- modification of the place of work which is located in the same geographical area;
- the saleswoman whom the employer now asks to collect sales;
- start work at 9 a.m. instead of 8 a.m.;
- for a bilingual consultant employee, a 2-month mission in Germany.
The concept of geographical sector is assessed sovereignly by the Conseil des prud’hommes. Thus, the Paris region, even if it constitutes the same administrative region, is not the same geographical sector.
This implies that the employee was not entitled to refuse this modification without risking sanctions which could go as far as dismissal.
Content updated on 01/07/2012