Under Dutch employment law the unilateral amendment of principal employment conditions (wages, working hours etc.) by the employer is in general only possible under restricted conditions. In general, a principal employment condition can only be amended after consultation with and consent by the employee.
First it must be established if the employer has included a unilateral amendment clause in the employment agreement, based on article 7:613 Dutch Civil Code. Is this the case, then the employer can only amend the employment condition unilaterally based on a “substantial interest” that outweighs the interest of the employee, such as business economic reasons.
In case a unilateral amendment clause is not included in the employment agreement, the court will assess the case on the principle of good employer/good employee practices, based on article 7:611 Dutch Civil Code. Based on this principle it must be determined whether the employer, acting as a good employer, has valid reasons to propose an amendment of the employment condition. It must be established whether this proposal, taking into consideration all relevant circumstances of the case, is considered reasonable. Next, it must be determined whether the employee, acting as a good employee, can, in the light of these relevant circumstances, be expected to accept the unilateral amendment. From case law it follows that the employee must accept reasonable proposals by the employer.
Sometimes it can be expected from the employer to apply a phase-out scheme. Also, prior consent of a works council with the amendment of secondary employment conditions (if applicable) may be required.
If you have any questions concerning the amendment of the employment agreement under Dutch law, please feel free to contact Blenheim’s team of employment law attorneys.
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