Your lawyerEileen A. Pluijm, LL.M.
Eileen Pluijm advises national and international entrepreneurs and organisations on disputes concerning personnel, employee participation and social security. She is a member of the employment law and dismissal group at Russell Advocaten.
t: +31 20 - 301 55 55
Changing the employment conditions due to corona
Many businesses were hit hard by the outbreak of the COVID-19 pandemic and the measures taken by the government as a result. Though various emergency measures, such as the NOW, can provide relief to your business, this may not be enough for your company. Can you then (unilaterally) change the conditions of employment of your employees, such as stopping the bonus payment or reversing a promised wage increase?
In principle, you are bound by the employment contract as concluded with your employee. However, due to the coronavirus crisis, it is sometimes possible to change the agreed conditions of employment. This can be done by:
- A change with the consent of the employee
- A unilateral change if you have substantial interests and you have agreed on a changes clause; and
- By making a reasonable proposal to the employee with which he must agree on grounds of being a good employee.
Agreement with your employee
First of all, a change of the conditions of employment is possible with the consent of your employee. Hence, you can request your employee to agree with a (temporary) change of his or her conditions of employment. It may well be that your employee is prepared to agree to the (adverse) adjustment if, for instance, he has the choice between a wage sacrifice and bankruptcy or a forced redundancy.
If your employee agrees to a change of his conditions of employment, it is important to record this properly. Lay down in writing which conditions will be changed, how, for how long, and why. Have your employee sign this record. This will prevent discussions afterwards.
Unilateral change of the conditions of employment?
What if your employee does not agree with your request to adjust the conditions of employment? Can you unilaterally change the conditions of employment?
Unilateral changes clause
If you have agreed on a unilateral changes clause with your employees, you may be able to unilaterally change the conditions of employment on grounds of the coronavirus crisis. A unilateral changes clause has to be agreed in writing (for example, in the employment contract, collective labour agreement or personnel handbook). Please note: you can only make use of this clause if you have such a substantial interest in the change that the interest of the employee has to yield to it.
Whether you can use a unilateral changes clause due to COVID-19 will depend on the consequences of the outbreak of the coronavirus for your company. Has it caused business or organisational circumstances which compel you to change the conditions of employment and to which the interest of the employee has to yield (temporarily)? In this case reliance on a unilateral changes clause could be successful. This could be the case, for example, if you have insufficient means to continue to pay your employees’ salary despite the salary support through the NOW scheme.
No unilateral changes clause
The conditions of employment can also be changed without a unilateral changes clause. If the following three conditions are met, your employee must agree to your proposal for change on grounds of being a good employee:
- As a consequence of the coronavirus crisis there are changed circumstances at work that give rise to changes of the conditions of employment
- You have made a reasonable proposal to your employee to change theconditions of employment
- The acceptance of this proposal can reasonably be required from your employee
A disadvantage compared to the unilateral changes clause is that if the employee does not agree with your proposal, you have to prove that you have fulfilled these conditions before you can implement the change. If you have a unilateral changes clause, the employee has to prove that you are making improper use of it.
You can change the conditions of employment with the consent of your employee during the COVID-19 pandemic. However, under certain circumstances this is also possible without the consent of your employee. The aforementioned conditions are a hard test that turns out differently for each employer. Take into account that, in principle, primary conditions of employment are more difficult to change than secondary conditions of employment.
Do you have any further questions about a (unilateral) change of the conditions of employment due to the COVID-19 pandemic? Or are you looing for advice about limiting the consequences of the coronavirus crisis? Please contact our coronavirus crisis team:
- Reinier W.L. Russell, LL.M. (email@example.com)
- Jan Dop, LL.M. (firstname.lastname@example.org)
- Eileen A. Pluijm, LL.M. (email@example.com)
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