When the employee's employment conditions change without his consent for the worse, there are means of defense he can use for his protection.
Every employer has a managerial right that enables him to take all necessary steps to determine the operating conditions of his business. This includes the employment of the employees. In accordance with the Civil Code, the right is limited by good faith, honest practices and it’s social and economic purpose. The employer's actions often affect the employees, resulting in an unfavorable position for them, either materially or morally. This is the so-called unilateral aggravated change in employment conditions. This change must be unilateral, adversely affecting, definitive and abolish the employee's contractual rights at the same time.
To improve the overall clarity of this article, the pronoun ‘he’ refers to both men and women unless over wise stated.
Employee's lack of consent to the change of his employment conditions
The unilateral change is a modification imposed by the employer without the employee's consent. If the employer has the power to change certain conditions unilaterally, it is no longer a unilateral, but an agreed change in the employment conditions, since the employer has the power to amend certain terms that the parties have already agreed upon with the conclusion of the contract. Thus, in principle, the employer is entitled to change any case which has not been set in the employment contract or may be able to make a unilateral change in the contract itself.
Unilateral change is any change in the employment conditions by the employer a) without the latter having the right to modify them by the law, the individual employment contract or the employment regulation, b) nor having the power, resulting from his managerial capacity, to regulate all matters relating to the organization and operation of the business or c) with abuse of the managerial right (Article 281 CC).
Supreme Court of Greece, B2 Civil Department, Judgment 216/2017
The unilateral aggravated changes of employment conditions have, among other things, an impact on the employee's psychological state.
Employee's damage from the change of his employment conditions
The change must be adversely affecting, that is to cause a direct or indirect material or moral damage to the employee. It has been ruled by the civil courts that the deprivation of an employee's managerial duties, who has 15 years of experience and specialized knowledge, is a unilateral change in his employment conditions as it causes both material damage (mainly in terms of his earnings) and moral damage, as his duties are downgraded (Supreme Court of Greece, Judgment 24/2014). Another example of moral damage is a case where an employer continuously abused an employee to the point of causing him physical harm. This behavior created an intolerable working environment in which the systematic abuse of the moral status and irreparable infringement of personal rights of the employee occurred. The Supreme Court of Greece considered this case as a unilateral aggravated change of employment conditions (Supreme Court of Greece, Judgment 700/2015. Other typical examples of material or moral damage are the lowering of the employee, the assignment of less favorable work, the reduction of working hours with a corresponding reduction in earnings, the change in the method of calculating earnings, etc. That said, the judgment No. 677/2017 of the Supreme Court of Greece, which stated that the non-payment of hours worked, in isolation, does not constitute a unilateral aggravated change, if the employer does not aim to force the employee to resign, made quite an impression.
Permanence of the change of employment conditions
The change of employment conditions must be permanent and not temporary. The intention of the employer should be to terminate the existing employment contract and to conclude a new contract on different terms (Supreme Court of Greece, Judgments 315/2014, 48/2010). Therefore, it is not considered to be a unilateral adverse change when the employer imposes additional work other than the legal working hours or working on Sundays and public holidays, if this is of a temporary nature, to meet the exceptional needs of the business.
Change of employment conditions due to company restructuring
An important exception to the limits of the adverse change is the case of the restructuring of the company for economic reasons and, in particular, when the employer is forced to change the duties of the employees for the benefit of the company. It has been accepted that, when there is a need for restructuring because of an economic need, the change of the duties of the employee, which is unilaterally imposed, is perfectly legitimate, as long as the new duties are not inferior and do not lead to a reduction in earnings (Kozani Single-Member Court of First Instance, Judgment 544/2003). It has been decided that the reduction of an employee's salary is legal and does not constitute a unilateral aggravated change, if it is in line with the general economic situation of the company (Thessaloniki Single-Member Court of First Instance, judgment 8561/2012). It should be noted that, in any event, the judgment on the existence or non-existence of a unilateral aggravated change of employment conditions lies with the Court of Justice, which takes into consideration all those special circumstances that make a unilateral change aggravated or not.
The employee has the right not to accept a unilateral and illegal change in his working conditions.
Acceptance of change of employment conditions by the employee
When an employee experiences a unilateral aggravated change, he has the option to accept it. This acceptance can be inferred from the employee's lack of reaction. It is then considered that a new employment contract is being concluded, modifying the original one, which is entirely lawful, provided of course that it does not contradict a prohibition of law, good faith, and standards of public decency.
Persistence of the employee on the pre-existing employment conditions
If the employee does not wish to accept the change of employment conditions, he can insist on the original contract by offering his services in accordance with the preconditions. If the employer does not accept the employee's services under these terms, then he falls into an arrears. Arrears means the employee is exempted from the obligation to work, as the employer does not accept it, while the employer owes the default payments, that is the payments he would have had to pay to the employee if he worked normally. In this case, the dismissal of the employee due to his non-compliance with the new conditions is totally void.
Change of employment conditions as a termination of the employment contract
Another option for the employee in the event of a unilateral aggravated change of employment conditions is to consider the change as a termination of the employment contract by the employer. He can then withdraw from the job by claiming the legal dismissal compensation through a lawsuit. An employee wishing to react must act within a reasonable period of time. The law does not set a specific deadline, but uses the concept of reasonable period of time, which is interpreted by the Court.
In the case of an employment contract of indefinite duration, if the employer makes a unilateral aggravated change in the employment conditions of the employee, the latter has alternatively the following options: (a) to accept the change, resulting in the art. 361 of CC conclusion of a new contract (tacitly), modifying the original, which is valid, provided that it is not contrary to a prohibition of law or the accepted principles of morality, (b) to consider this act by the employer as a termination on his part of the employment contract and demand the payment of the compensation provided for by Law 2112/1920, and (c) to adhere to the observance of the contractual clauses by offering his services in accordance with the pre-change conditions and expressing his opposition and bring the case to Court requesting that the employer employs him according to pre-change conditions. In the latter case, if the employer does not accept the employee’s services, he falls into arrears and owes the default payments.
Supreme Court of Greece, B2 Civil Department, Judgment 216/2017
In conclusion, any changes that cause damage to the employee may constitute a unilateral aggravated shift in employment conditions, which he is not obliged to accept. The Court will judge the unilateral aggravated change according to the circumstances prevailing and the context in which it occurred. Both parties must pay attention to the limits of the managerial pregorative and the possibilities offered by the employment contract so that the separation between a unilateral-illegal action and an agreed possibility of change is clear.
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