Unilateral job change: what is an employer allowed to do?
In a ruling on April 6, 2023, the East Brabant subdistrict court ruled on an issue that frequently arises in labor relations: when may an employee be demoted to a lower position without his consent by the employer? In this case, an employer decided to demote an employee after an incident in the workplace, but the judge whistled him back. The case makes it clear that job reduction, also known as demotion, is only possible under strict conditions.
The trigger: leaving earlier and a sudden demotion
The employee in question had been employed by a fruit and vegetable wholesaler since 2016. Over the years, she had worked her way up from production worker to supervisor plus. On Aug. 6, 2022, she left work two hours early without permission, after her request to leave earlier was denied. According to the employer, this led to disruption of the production process and added this incident to a series of years in which the employee's performance was allegedly deficient. The employer decided to transfer her back to the position of production assistant, with correspondingly lower pay.
The employee protested. She argued that the job change was unjustified and careless, that she had actually received promotions in the years prior to the incident, and that there was no structural dysfunction. She further argued that the August 6 departure was for good reasons, namely an acute car problem requiring a garage visit. She also said she had transferred her duties neatly. The case eventually went to trial.
The legal framework: article 7:613 BW and good employment practice
The court assessed whether the employer was entitled to unilaterally change the employee's position based on the amendment clause in the employment contract. Such a clause is in itself legally valid, but may only be invoked if there is such a weighty interest on the part of the employer that the interest of the employee must give way. This follows from Article 7:613 of the Civil Code. In addition, the general principle of good employment practices applies.
In this case, the subdistrict court ruled that there was no situation in which this heavy weighing was in favor of the employer. Although the employer had argued that the employee's performance had left much to be desired for years, it had not provided convincing justification for this. On the contrary, the employee had received promotions in the years prior to the incident, which was not consistent with the picture of long-term dysfunction. Also, no improvement plan had been started or announced, whereas according to the court this could be expected. After all, an employee should only be confronted with a drastic measure such as job reduction after a fair chance to improve.
The demotion was disproportionate
Although the incident on August 6, 2022 can be blamed on the employee, after all it was busy and there was no permission to leave earlier, the judge did not find that this in itself could justify a demotion. There was no evidence that the production process had actually been seriously disrupted. According to the subdistrict court, the employer could therefore have considered other, less far-reaching measures. Consider an official warning or temporary correction. A structural change of position and salary went too far in this case.
The employer still argued that the employee could be promoted again in the future if she proved herself again, but the judge did not find that convincing either. Reducing first and only then offering a chance for recovery violates the principles of decent employment practices.
Reinstatement and wage claim granted
The subdistrict court largely granted the employee's claim. The employer had to reinstate her to her former position as supervisor plus within a week and pay the overdue salary retroactively, including emoluments and statutory interest. In addition, a penalty payment was imposed for each day the employer was in default. The statutory increase for late pay was also awarded in part.
The judge emphasized that the importance of careful decision-making weighs heavily, especially when it comes to primary terms of employment such as position and pay. Without a convincing improvement process and without clear communication about consequences beforehand, a job change is legally vulnerable.
Conclusion
A demotion is a drastic measure that is permitted under employment law only in exceptional cases. This ruling shows that an employer must first act carefully, set up a process of improvement and be able to demonstrate concrete abuses. Only when these conditions are met and the interests of the employer outweigh those of the employee can a demotion be sustained. Reinstating an employee without clear substantiation, even after an incident, is not legally tenable.
Employers facing dysfunction or a labor dispute would do well to seek timely legal advice. For employees, they need to be aware of their rights when employment conditions change.
This blog was written by mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and supports entrepreneurs and employees on a daily basis with a variety of employment law issues. From dismissal cases to drafting watertight contracts and regulations - with his practical and personal approach, he helps employers and employees move forward. Want to know more? Visit Stijn's page.
Arbeidsadvocaat.nl is happy to assist you if you have any questions about a demotion. Please feel freeto contact us.
April 2025
