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A clause may not allow the employer to unilaterally modify the employment contract

Employees were hired to work evening or night hours and received bonuses for this purpose. During a reorganization, the employer switched the employees without their agreement, to daytime working hours, relying on a clause in the employment contract according to which “production requirements could lead the company to assign employees to the different working hours“.

The employees challenged this decision by requesting payment of evening or night-time premiums and damages for moral prejudice. In addition, one of the employees requested the judicial termination of his employment contract. These requests were rejected by the Court of Appeal, which considered that the employer’s managerial power allowed him to modify working hours and reduce remuneration accordingly, since they had not been contracted.

By a decision of 14 November 2018, the Court of Cassation overturned this decision, noting that the employment contracts expressly stipulated that employees would work evening or night hours and pay the related bonuses. Since the hours have been contractualized, the clause in the employment contract providing that the employer may unilaterally modify the working hours is null and void. The employer should therefore have sought the agreement of the employees to be able to modify their working hours.

This unilateral modification clause could have had an effect if the employment contract had not provided for any specific working hours.

French Supreme Court, 14 Novembre 2018, n°17-11757