Detrimental changes in the employment contract for the worker

Detrimental changes in the employment contract for the worker. Substantial modification of working conditions.
Published on: 25 November 2021

Table of contents

Substantial modification of working conditions, can it happen, what to do in this situation, am I entitled to compensation?

The substantial modification of working conditions in an employment contract can happen in any company and to any employee. This is a frequent question for employment lawyers. In principle, there is nothing that can be done to avoid it, but it is possible to act accordingly, when this situation may occur.

It implies a variation of the working conditions initially agreed by the company, which affects the contractual relationship and usually has disadvantages for the worker. This regulation is reflected in the Royal Legislative Decree 2/2015 known as the Workers' Statute in articles 41 and 50.

The modification of working conditions falls within the legislative framework and can take place as long as there are "economic, technical, organisational or production reasons", as stated in the web section of the Ministry of Labour and Social Economy.

What are the characteristics of a modification of the employment contract?

The regulations governing Substantial Modifications of Working Conditions are based on different changes that may affect the employee's previous employment contract.

It may affect the following circumstances:

i) Working hours. The modification may be presented in relation to the total number of working hours, and may be reduced with a reduction in the number of paid working hours. On the other hand, it may involve a change in the working hours, i.e. a change in the shift or a distribution of working hours throughout the day, with free hours in the itinerary, preventing the reconciliation of professional and family life.

ii) Remuneration system. A reduction in the amount of pay to be received would occur in most cases.

In any of these situations, the worker must be informed 30 days before the change is made.

The aforementioned modifications are permitted within the legal framework, provided that the aforementioned circumstances are met.

Below, we set out the way in which the contract can be modified, in this case it can be of an individual or collective nature.

Individual character

The modification of labour measures of an individual nature can affect 10% of the workers of a company, provided that it is within the 90-day period for carrying it out.

Collective nature

The modification of collective labour measures may affect a large number of workers in the company.

The regulation establishes that it must be within a period of less than 90 days. If it occurs in several successive 90-day periods, the change will be considered null and void.

What can I do?

There are several options you can take if you are informed of a substantial change in your employment contract.

- Firstly, you can accept the situation and continue in your job under the new working conditions.

- Secondly, you can ask the company to terminate the employment relationship if the employee has been substantially harmed by the change in working hours or timetable, or by the modification of the salary to be received. In this case, the worker would be entitled to receive 20 days' compensation per year worked.

However, the company may refuse to terminate the employee's contract or to pay compensation. If this happens, an appeal may be lodged with the Social Court, so that the judge can decide on the procedure.

In any case, if the reasons for the modification of the contract by the company are declared unjustified, the worker will be entitled to exercise his/her right to terminate the contract of his/her own free will, and the compensation to be received will be the same as that established for unfair dismissal.

- Thirdly, if the employee does not wish to terminate the contract, but the proposed modification is detrimental to him/her, he/she may appeal to the Social Court.

If the judgement is unfavourable to the company, the worker will be entitled to the same working conditions as before. If the company opposes, it will terminate the contract at the employee's will.

If the judgement is favourable to the company, the procedure for termination of the contract will be established, in both cases, with the amount of compensation as unfair dismissal.

Seek help from an employment lawyer

In any situation that requires legal proceedings, it is advisable to seek the advice of an experienced lawyer who can investigate your case in depth and propose a successful solution.

G.Elías y Muñoz Abogados. Su Bufete de Abogados Laboralistas en Madrid.

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