The signing of an employment contract implies an agreement on working conditions. But these can change over time. Sometimes it may be at the request of the employee and in other cases it may be imposed unilaterally by the employer, justifying itself in an objective cause.
In this second case, the power of the company’s management is not unlimited and the measures always have to respect mechanisms regulated by law, as well as the minimum rights that are included in the Workers’ Statute and/or in the collective agreement .
It is possible that the agreement reached does not determine that there is an objective cause or harm the worker. In this case, the employee can challenge the agreement individually.
The substantial modification of working conditions is regulated by the Workers’ Statute, Title II, Article 41, which legislates the procedure to make the modification; the collective agreement; the employment contract and Law 36/2011, Regulator of the Social Jurisdiction, Section 4.
There are several requirements for the modification to be considered substantial, which seek to guarantee the legality of this measure and protect employees, establishing the conditions, consultation periods, agents involved and how to communicate the decision.
Some of the cases that are considered a substantial modification of working conditions are the working day, the schedule and distribution of working time, the remuneration and salary amount, functional mobility, the work and performance system and the transfer to a center of work.
To make a substantial change in working conditions, the company must notify the worker 15 days before the date on which the changes will come into force, in addition to notifying these changes. The Regulatory Law of the Social Jurisdiction establishes that this notification must be in writing.
In the event that the worker feels prejudiced or the requirements are not met, he has the right to challenge the modification imposed by the company.
The worker has 20 working days from the notification of the substantial modification by the company to challenge the decision. The term must be counted from when the employee is notified of the modification in any way, not necessarily in writing, or from the moment in which he should have been aware of the modification.
When challenging this measure, it is necessary to be able to justify that there are no objective causes or that the employer has not followed the procedure to apply the modifications. While a worker can represent himself, it is best to have the lawsuit filed by an experienced employment law dispute attorney.
In the event that the sentence declares the modification unjustified or null, the right of the worker to recover his previous working conditions will be recognized. If the company does not want to reinstate the worker’s previous conditions or does so irregularly, it will be possible -and advisable for the employee’s interests- to sue the company.
While the substantial modification of working conditions is being challenged in court, the person must remain in his job, except in exceptional situations or when the judge grants the employee not to remain in his job as a precautionary measure.
Challenge a substantial change in working conditions does not imply losing the right to request the termination of the employment relationship. Article 138 of the Regulatory Law of the Social Jurisdiction, in its section 7, establishes a period of 15 days to request the termination of the employment relationship in the event that the worker is harmed by the substantial modification of the working conditions or the judgment declares the measure justified.
The worker must request the termination of the employment relationship. He will be entitled to compensation of 20 days per year worked with a maximum of 9 monthly payments. This compensation will be exempt from personal income tax and will also have the right to a settlement and to apply for unemployment benefits.
In the event that the company does not grant you termination, you will have to go to court and prove the particular damage caused by the change in working conditions (for example, that the change in hours does not allow conciliation).
Moreover, if the modification of the substantial working conditions harms the professional dignity of the employee, he may request compensation equivalent to that for unfair dismissal when requesting the termination of the employment relationship.
