In general, an employer may only change an employee’s employment benefits if the employee consents. The employer will thus have to negotiate the desired change in employment benefits with the employee.
Unilateral change of employment benefits
If the negotiations between the employer and employee do not result in an agreement, or if individual consent is problematic because the situation in question involves a collective bargaining agreement, then the employer may, under certain circumstances, still be able to effect the desired change unilaterally. The courts are not particularly amenable to such requests, however, which means they must be thoroughly substantiated. Unilateral changes can be made based on the following grounds:
- Section 7:613 Dutch Civil Code provides that an employer may only invoke a unilateral change clause if its interest in doing so is ‘so compelling’ that it reasonably outweighs the employee’s interest in avoiding the loss or harm he/she will incur as a result (for example, the need to cut costs given the employer’s poor financial position).
- If the employment contract does not contain a unilateral change clause, an employee is generally not obliged to accept an employer’s proposed change to the employment benefits, unless this is considered conduct befitting a good employee (Section 7:611 Dutch Civil Code). This is also a weighing of interests in which factors such as the nature of the employment benefit are taken into account. If the change regards a primary employment benefit (salary, holiday allowance, etc.), extra-high thresholds must be met and the change will usually be much more difficult to accomplish than a unilateral change of a secondary employment benefit (expense allowances, educational opportunities, etc.).
- In an extreme case, it may not be reasonably acceptable to enforce an existing employment benefit, in which case a unilateral change will be justified (Section 6:248 Dutch Civil Code). This is a very high threshold to meet.
Legal advice on changing employment benefits
Could you use some legal assistance with changing an employment benefit? Please do not hesitate to contact us at +31202351150 or via the contact form.. We would be glad to assist you.
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