Role change at work: must you accept it under Dutch law?

No, you do not have to accept every change to your job, but you cannot refuse every change either. An employer can only change your role against your will if your contract contains a valid unilateral amendment clause and the employer has a compelling interest, or, without such a clause, if the employer makes a reasonable proposal because of changed circumstances that you can reasonably be expected to accept.

The two routes lead to different tests. With an amendment clause, Article 7:613 of the Dutch Civil Code applies. Without one, which is the more common situation, the question falls under Article 7:611 and the test the Supreme Court (Hoge Raad) set out in the Stoof/Mammoet judgment.

The consequence works both ways. Refusing a proposal that meets the Stoof/Mammoet test can itself lead to dismissal. Accepting a change in writing, under express reservation, protects your position while the discussion continues. Below we explain the test, show how it applies to duties, pay, working hours and place of work, and set out practical steps for employees and employers.

What counts as a change of role?

A change of role is a real change to the content of your job, not a practical instruction about how you do it. Instructions fall within the employer’s right of instruction; changes to the core of the job require your consent or must meet the legal test.

In Dutch employment law, there is an important difference between minor adjustments and substantial changes to the content of the job.

Which adjustments fall within the right of instruction?

Every employer may give instructions about how the work is done and about good order in the company (Article 7:660 of the Civil Code). If your manager asks you to use a new software system, to attend a weekly meeting on a different day, or to take on a temporary task that fits your skills, that usually falls within this right. An employee is generally expected to follow such instructions.

Which changes go further?

A real change of role touches the core of what you were hired to do. Examples:

• Different duties: a marketing manager who is asked to take on a sales role with cold-calling targets.
• Different working hours: a move from regular office hours to a rotating shift pattern including nights.
• Different place of work: a transfer from the Amsterdam office to a new head office in Rotterdam.
• Different responsibilities: a manager who loses his team and becomes an individual contributor.
• Transfer to another department: a move from a creative department to an administrative processing unit.

When a change touches the heart of the job, it is no longer an instruction but a change to your terms of employment. Then one of the two legal tests applies.

Does your contract contain an amendment clause?

Check your employment contract first. The legal test depends on whether it contains a unilateral amendment clause (eenzijdig wijzigingsbeding).

What if there is an amendment clause (Article 7:613 of the Civil Code)?

Then the employer may change the terms on the basis of that clause, but only under strict conditions:

• Written clause: the clause must have been agreed in writing, for example in the employment contract or in a staff handbook that you signed for.
• Compelling interest: the employer must have a compelling interest (zwaarwichtig belang) in the change. A trivial reason is not enough.
• Balancing of interests: the employer’s interest must be so weighty that, by the standards of reasonableness and fairness, your interest as an employee must yield to it.

If the employer can show, for example, that the survival of the business depends on a reorganisation that affects your role, its interest may outweigh your wish to keep your current duties. If the change is mainly a matter of convenience, your interest in stability will usually prevail.

Collective changes, for example to a working hours scheme, may also require the consent of the works council (ondernemingsraad) under Article 27 of the Works Councils Act (Wet op de ondernemingsraden). The courts take that consent into account when they weigh the interests.

What if there is no amendment clause?

Then your position is in principle stronger. A contract binds both parties, and one party cannot change it alone. Your consent is needed.

That does not mean you can refuse everything. Under Article 7:611 of the Civil Code, the employer must act as a good employer and you as a good employee (goed werkgeverschap en goed werknemerschap). Even without an amendment clause, you may be obliged to accept a change if it is a reasonable proposal made in response to changed circumstances. That brings us to the most important test in this area.

When must you accept a change? The Stoof/Mammoet test

You must accept a proposal if the employer had good reason to make it, the proposal is reasonable in all the circumstances, and acceptance can reasonably be required of you. The Supreme Court set out this test on 11 July 2008 (ECLI:NL:HR:2008:BD1847).

In that case, after an acquisition and integration, the employer proposed to change an employee’s role from technical director of a business unit to adviser to a vice-president. The employee refused and stopped working, and the employer stopped paying his salary. The Supreme Court held that the question is not whether the employee’s refusal is unacceptable by the standards of reasonableness and fairness, but that the matter must be assessed in steps. If the answer to all questions is yes, the employee must in principle accept the change.

1. Did the employer have good reason to make a proposal?

There must be changed circumstances that give the employer reason to propose a change. An employer cannot change your role on a whim.

Examples of good reasons:

• Reorganisation: the company restructures to avoid insolvency or to work more efficiently.
• Economic circumstances: a fall in revenue requires a leaner organisation.
• Technological developments: automation has made certain tasks obsolete.
• Performance: an employee is not coping in the current role, and a more suitable position is offered instead of dismissal.
• Changed market conditions: client demand requires different skills or a different focus.

Examples of insufficient reasons:

• Cost-cutting without necessity: reducing pay or demoting staff purely to increase profit.
• Personal conflict: moving an employee only because a manager does not like him.
• No clear reason: changing a role without any business strategy or justification.

2. Is the proposal reasonable?

Even if there is a good reason, the specific proposal must also be reasonable. The court looks at the actual offer on the table, in the light of all the circumstances.

Factors that play a role:

• How far-reaching is the change: a small adjustment, or a change that alters your daily working life completely?
• Financial effects: does the new role come with lower pay or the loss of a bonus?
• Career prospects: is the move a demotion, and does it stall your development?
• Travel: does a new location add significant commuting time, and is it accessible?
• Transitional arrangements: does the employer offer a phasing-out of pay, training or compensation for extra travel costs?

3. Can acceptance reasonably be required of you?

Finally, the focus shifts to you. Even if the reason is valid and the proposal is fair in general, the question is whether acceptance can reasonably be expected from you in particular.

Personal circumstances weigh heavily here:

• Length of service: an employee with 25 years of service may have more protection against a radical change than someone who has been employed for six months.
• Age: it may be unreasonable to ask an older employee to retrain extensively for a completely different trade.
• Family situation: a change in hours may be impossible for a single parent with fixed childcare arrangements.
• Health: physical limitations may make a proposed role unsuitable.
• Alternatives: did the employer look for options with less impact on you?

How does the test work in practice?

The outcome always depends on the facts, and the court weighs the three questions together. Two patterns recur in the case law since 2008.

An example to illustrate: an employee underperforms in a management role. The employer documents the problems, runs an improvement plan with coaching and, when that fails, offers a non-managerial role with a modest pay adjustment instead of seeking dismissal. Such a proposal will usually be found reasonable, because a demotion can be a careful alternative to dismissal under Article 7:669(3)(d) BW.

Conversely, a change made without a clear business reason, in a schedule that clashes with care duties the employer knows about and without any alternatives, usually fails the first or third question. Long service and a specialised position built up over many years also weigh heavily in the employee’s favour.

What happens if you cannot agree?

If the dialogue ends in deadlock, the employee in principle keeps the current role and pay, and it is up to the employer to decide whether to accept the refusal or to go to court. The subdistrict court (kantonrechter) then applies the Stoof/Mammoet test.

What are the risks for the employee?

In the short term, you usually keep your current role. If the employer reduces your pay without a valid basis, you can claim the difference. But refusing a reasonable proposal has consequences. It puts pressure on the working relationship, and if a court finds your refusal unreasonable, your contract can be dissolved.

If you persistently refuse to carry out reasonable instructions, the employer may even have grounds for summary dismissal (Article 7:678(2)(j) of the Civil Code). And if the court finds that you acted seriously culpably, you may lose your right to the transition payment (transitievergoeding).

What are the risks for the employer?

The employer can accept the refusal and leave things as they are, or it can ask the subdistrict court to dissolve the employment contract. Possible grounds are culpable conduct of the employee (Article 7:669(3)(e) of the Civil Code) or a seriously and permanently disrupted working relationship (Article 7:669(3)(g)).

This is risky. If the court finds that the proposal was unreasonable, it will refuse the request. If the employer itself acted seriously culpably, the court can also award the employee fair compensation (billijke vergoeding) on top of the transition payment.

The court weighs the employer’s business interest against the employee’s personal interest and applies the Stoof/Mammoet test strictly.

What should you check as an employee?

Do not agree on the spot, and do not refuse without reasons. Check:

• Whether your contract or a staff handbook you signed contains a written amendment clause (Article 7:613 BW).
• Whether you have the proposal in writing, with the reason and the alternatives the employer considered.
• What the change means for your pay, bonus, hours, travel time and career, and whether there is a transitional arrangement.
• Which personal circumstances, such as care duties or health, make acceptance unreasonable for you, and whether you have told the employer in writing.
• Whether you can start the new work under written reservation of your rights while the discussion continues.
• That you keep copies of every proposal and confirm each meeting by email.

What should you check as an employer?

Prepare the change as a legal process. Check:

• Your business reason is documented, with the alternatives you looked at and rejected.
• Whether there is a valid written amendment clause and, if so, a compelling interest to invoke it.
• Whether the works council must consent under Article 27 of the Works Councils Act (WOR), for example for a working hours scheme.
• That you offer support: training, a phasing-out of any pay cut, or compensation for extra travel costs.
• That the agreed change is confirmed in writing no later than the day it takes effect (Article 7:655 BW).
• What you will do if the employee refuses: dissolution goes through the subdistrict court, not the UWV.

What can we do for you with a change of role?

Our employment lawyers advise employees and employers on changes of role and reorganisations.

• We assess the proposal against Article 7:613 BW or the Stoof/Mammoet test.
• We draft your reasoned response, or an acceptance under reservation of rights.
• For employers, we draft the written proposal and the supporting file.
• We negotiate transitional arrangements such as a pay phase-out or training budget.
• We conduct or defend dissolution proceedings before the subdistrict court.

Summary

• An employer may give instructions about how you work, but a real change to the content of your job requires your consent or must meet a legal test.
• With a written amendment clause, the employer needs a compelling interest that outweighs yours (Article 7:613 of the Civil Code).
• Without such a clause, you must accept a change if the employer had good reason, the proposal is reasonable and acceptance can reasonably be required of you (Stoof/Mammoet, 2008).
• Refusing a reasonable proposal can lead to dissolution of your contract; refusing an unreasonable one is your right.
• Ask for the proposal in writing, take time to consider, respond with reasons and, if needed, accept under reservation.

Frequently asked questions