A unilateral variation clause allows an employer to change a term of employment without the employee’s consent. It only bites where the employer has an interest so substantial that the employee’s interest must yield to it.
Legal basis
Article 7:613 of the Dutch Civil Code contains the rule and requires the clause to be agreed in writing. Without such a clause the route is Article 7:611 and the Stoof/Mammoet judgment: the employer must make a reasonable proposal arising from changed circumstances at work, and acceptance may be required of the employee where that can reasonably be asked. In the Fair Play judgment of 2019 the Supreme Court clarified that for a collective change with a clause, the balancing exercise of Article 7:613 comes first. Pension arrangements are subject to further rules under the Pensions Act.
How it works in practice
A substantial interest is accepted where there is demonstrable business necessity, where harmonisation follows a merger, or where an arrangement has become technically unworkable. The employer should substantiate the necessity with figures, show alternatives, offer transitional arrangements and involve the works council; the council’s agreement carries weight but is not decisive for the individual employee.
Where it goes wrong
Employers use the clause for a cost saving without necessity, or make changes retrospectively. A second error is changing something that turns out not to be a term of employment but an acquired right based on years of practice. Third, the clause was never recorded in writing, so the heavier test of good employeeship applies.
Related terms
The clause connects to the collective labour agreement, the works council and the study costs clause.
Is your employer seeking a unilateral change? Our employment law specialists assess the interest and the proposal.
