Unilateral changes by employers in employment terms and conditions or in jobs or job duties have generated a lot of case law. Most of these cases have pertained to a change in job duties as a result of the employee’s unsatisfactory performance. It is clear that, in principle, the employer must show that there are compelling circumstances which justify changing the employment terms and conditions unilaterally. Recently, the Preliminary Relief Judge in Eindhoven, the Netherlands, held that the employer’s entrepreneurial freedom may provide a basis for allowing it to make unilateral changes.

Case

The employee in question worked as a clinical psychologist at a hospital. In that position, he performed a wide variety of duties in various medical areas. In October 2012, the hospital told the employee without prior consultation that he was being appointed as a medical specialist. Such an appointment would have significantly reduced his range of duties. The employment contract did not include any unilateral changes clause. Nevertheless, the hospital changed the employee’s position unilaterally. In preliminary relief proceedings, the employee sought to be returned to his former position as a clinical psychologist.

Framework for review

If the employment contract does not contain any unilateral changes clause, a unilateral change will be reviewed against the reasonable employer and reasonable employee standards developed in case law.

Generally speaking, an employee should respond favourably to a proposal to modify the employment terms and conditions which arise from changed circumstances in the workplace. The proposal implies that the employer and employee will discuss this with one another. An employee may only reject the proposal if he/she cannot reasonably be expected to accept it.

This review framework takes into account all the circumstances of the case, with the employee being protected against unreasonable proposals by the employer.

Parties’ interests

In the case at hand, the interests were as follows. The hospital wanted to gain a bigger national and regional profile by having medical specialists serve as the centrepiece of the hospital. The employee was therefore appointed as one of these specialists, as a result of which his duties would solely focus on a single medical area. These goals had been set forth by the hospital in a long-term policy plan and an action plan. Crucially, the employee did not deny this interest.

In response, the employee asserted that the change in his set of duties would be too dramatic for him. The employee said that the job change would lead to a huge loss of know-how and experience. Moreover, he was convinced that the position of medical specialist would become less challenging in the future.

Ruling

The Preliminary Relief Judge found that an employer has a great deal of freedom in structuring its organisation in the manner it sees fit, provided it does so with due care and sufficiently takes into account the legitimate interests of its employees. In the Preliminary Relief Judge’s view, the change in duties was – despite the fact that there had been no prior consultation with the employee – permissible, because the employer in this situation had a legitimate interest in fulfilling and effectuating its goals.

Consideration was also given to the fact that the decision to appoint the employee as a medical specialist was based in principle on the employee's qualities and, hence, from the employer's perspective, was a positive gesture. The hospital felt that the employee would be able in that connection to garner nationwide attention for his specialist knowledge and that he would become an icon for the hospital with an increased managerial role (which had been stated in the long-term policy plan, too). The employee, however, saw the change as detrimental, because much of his know-how and experience would be lost through the curtailment of his duties. His position would consequently become less challenging as well. The Preliminary Relief Judge did not regard this as a reason for not accepting the unilateral change.

Conclusion

In general, the decision furnishes reference points for employers seeking to unilaterally change an employee’s set of duties if they can persuasively put forward arguments for this based on internal, organisational objectives. The Preliminary Relief Judge recognised in the case the employer’s freedom to lay out its organisation as it desires, provided it acts with due care. The fact that the employee was not consulted beforehand did not, in the finding of the Preliminary Relief Judge, mean that the employer had acted without due care in that case. Given the established case law, however, we consider that this finding is remarkable.

It must be remembered that this case involved preliminary relief proceedings, in which there is no room for elaborate factual investigation. A court hearing the merits of an action might nonetheless decide otherwise.

Source CMS Newsflash Employment & Pensions, 2013, issue 5