Unilateral change of working hours

Year of publication

2011


Year of publication

197


Reference

Subdistrict Court Utrecht April 2th, 2011, www.rechtspraak.nl, LJN: BQ3288


Decision

In a nursing home a lady has been working as a care assistant since 1979 for three evenings per week from 18.00 to 23.00 h. These working times were confirmed in writing in 2000 with a supplementary remark that deviations from these times would always be negotiated with the employee. In August 2010, the employee’s manager indicated that he wanted to have a discussion with all persons starting their shift between 17:00 and 18:00 about an earlier starting time. These discussions took place in September 2010. In December 2010 the nursing home informs the employee that, with effect from March 1st 2011, her evening duty will be brought forward to 15.45 h. The employee disagrees and starts summary proceedings in which she claims that the Magistrate will force the nursing home to preserve the existing working hours. The employee holds the opinion that the change of working hours implies a unilateral change of her employment conditions and asserts that, wrongly, compelling personal circumstances (namely that she wants to assist her youngest 14 year-old son doing his homework and that she wants to make sure he will not derail) have not been taken into account.

The Magistrate first of all states that the working hours entry in the letter of 2000 does not mean that this includes a firm agreement, but the fact that, for more than a decade, the em-ployee, has been working based on this schedule does have the effect that the schedule has become part of her employment conditions. Next the Magistrate concludes that the employ-ment contract does not include a clause that enables the employer to unilaterally change the working conditions. The question then is whether the employee can be expected, based on good employeeship, to accept the proposal of the nursing home to change the working condi-tions. According to Supreme Court Case Law the Magistrate then should examine if there are changed circumstances to amend the employment contract (1), or if the made proposal to amend the employment contract is reasonable (2), and if the employee can reasonably be ex-pected to accept this proposal (3).

The changed circumstances are there, is the district court’s conclusion, because the nursing home has argued that the health care financing has changed such that no longer inefficient hours can be accepted. It was obvious that the employee’s working hours did not match the needs for attention of the residents of the nursing department where the employee worked. These residents needed care between 15.00 and 21.00 hours, and more specifically from 16.00 to 19.00 hours due to the supper. Furthermore, always someone else had to be scheduled in addition to the employee, because in her function she could not be given final responsibility, and there was no need for an additional employee after 22:00. Last, the shifts following on the end time of the employee would prevent optimal staffing during the busy morning hours. All of this was insufficiently argumentedly denied by the employee, the Magistrate argued.

The arguments the employee used to preserve the current working hours are themselves justifiable, but that the few hour absence of the employee (i.e. until the father is home) for three days will result in the derailment of her son, the Magistrate judges insufficiently evidence based. The boy attends the third year of pre-university education and has good results, so he needs no special guidance. The Magistrate also holds the opinion that the proposal was timely discussed and timely announced. Moreover, the nursing home preserved the old working hours pending the outcome of the proceedings.

The Magistrate judges that it is reasonable that the nursing home’s interests prevail over those of the employee. It may be required that the employee accepts the nursing home’s proposal. The employee’s claim is therefore rejected.


Comments

Even if parties have not agreed in the employment contract that the employer is authorized to unilaterally change the working conditions (which is then only incidentally possible if there are sufficient compelling reasons), it is still possible that the employer makes a proposal to amend the employment contract that the employee, based on good employeeship, cannot refuse. The conditions imposed by the Supreme Court Case Law were stated and applied by the Magistrate in the verdict. A restriction that the Supreme Court sets to this option is that it must handle changes in individual employment conditions. Collective changes such as changes in regulations of expenses compensation due to the introduction of the fiscal labour cost scheme, can, thus the Supreme Court state, never be imposed on the basis of good employeeship.



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