Can an employer simply change the function of an employee?

It can happen that an employer wants to change the function of an employee. If there is mutual agreement, this is, of course, perfectly possible. From a strictly legal point of view, an addendum does not even need to be drawn up. However, it is advisable to do this so that both parties know where they stand.

What if the employee does not agree?

It is possible that an employee is totally against such a change of function. In such situations, case law recognises that the employer can nevertheless impose their will within certain boundaries. An employer can unilaterally impose a new function on the employee on condition that the new function is similar, and does not constitute a substantial modification. This is purely a question of facts.

How will the judge examine it?

The judge would start, for example, by checking whether or not the employee is at the same hierarchical level in the new organisation chart before and after the modification. In the same vein, it can be examined whether the two functions are at the same grade. This can be done, for example, by determining the order of seniority by the weight of the function, using the number of points in the Hay method for both functions.

Which criteria play a role?

Does the employee lose a given status in the new function, such as Director or executive? Does the employee lose substantial powers that they previously had? Can they still manage the same budget as previously? For sales functions, the judge will examine whether there is a loss of a substantial market share or a certain product range. The lines of reporting in the two functions will also be compared: does the new function still involve managing as many people? Does the employee in the new function still have access to the Management Committee?

Can the employer impose their will?

If the comparison between the new function and the current function is acceptable on these points, the employer can impose a new function against the wishes of the employee. This is on condition that other essential elements of the employment contract are not unilaterally modified, such as salary, working time and workplace.

What if it is actually a demotion?

However, if it is actually a demotion, the employee can claim that the employer is in default, in order to maintain their previous function. If this is refused, the employee can consider it as breach of contract, stop working as a result, and claim severance compensation.

Be aware that if an employee wrongly invokes breach of contract, they will have terminated the contract themselves and are not entitled to any severance compensation!

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