Working End > Dismissal > Dismissal with Option of Altered Conditions

Dismissal with the Option of Altered Conditions of Employment

Definition, Explanation

A dismissal with the option of altered employment conditions (in German: Aenderungskuendigung) is a cancellation of an employment relationship, but including the offer to continue the employment with altered conditions. This way, the parties can change contractual rights and duties which have not or have otherwise been defined in the previous employment contract. Reasons for an altered-conditions-dismissal can be:

Reasons of conduct:

• Behavioural rasons:
  For instance, two colleagues might not get along, and hinder the workflow with their arguments
• Person-related reasons:
  For instance, sickness might result in performance decrease
• Operational reasons:
  For instance, order shortages economically necessitate adapting the current employment situation to the company requirements

After a dismissal with the option of altered conditions, a new employment contract can realize:

• Change in working tasks
• Change in working hours: Part time – full time, over hours
• Transfer to another working location or another department, working abroad
• Cuts in income due to financial difficulties of the company. Does not apply to revocable bonuses
• Free time compensation, replacing over-time payment
• Cutting of company cars and old-age provision contributions
• Changing a permanent employment into a limited-term one

Legally, the dismissal with the option of altered conditions is at first a real dismissal. Corresponding regulations as period of notice, notification of the works council etc. are fully applied. The dismissal with the option of altered conditions must be effected explicitly as a cancellation of the current employment relationship. Subsequently, it is then connected to the offer of continuing the employment relationship with altered conditions. As any dismissal, it has to be effected writtenly along with a statement of justified reasons.

If the employee rejects the offer of altering, then it will become a normal dismissal. By the way, dismissal protection law applies, according to which the dismissal with the option of altered conditions of employment must be socially justified. This is given if

• there is any reason for alteration about the person of the employee, respectively his conduct, or alteration is inevitable due to urgent operational requirements
• the new conditions are reasonably imposable taking into account the principle of commensurability

A special form is the extraordinary dismissal with the option of altered conditions of employment. For it to be legal, the requirements for an extraordinary dismissal must be fulfilled. The goal of the company, then, is to enforce alteration of the working conditions with immediate effect.

Tips, Checklist

For the employer:

• Notify your employee about the necessity of an alteration of the employment contract and work towards an amicable, agreed alteration
• Before you effect a regular dismissal, you should check whether you can employ the employee with altered conditions which would make a dismissal with the option of altered conditions of employment favourable
• At all events, before effecting the dismissal, notify the works council. They have a right of codetermination, according to § 102 BetrVG. Furthermore, consider that in case of a dismissal with the option of altered conditions of employment whose subject is a works council member, or pregnant or severely disabled, there are special directives and regulations applying
• Before effecting a dismissal with the option of altered conditions of employment, verify the justification of your reasons stated. Can you give proof for the employees violation of employment-contractual duties? Will the employment contract, really, be fulfillable only with altered conditions, due to the person of the employee respectively the company situation?
• Prior to a dismissal for operational reasons, you should effect a dismissal with the option of altered conditions of employment for operational reasons. Otherwise you risk the dismissal to be invalid. Point out to the employee intelligibly that rejecting the offer will result in cancellation of the employment relationship. The period of consideration to be given for the decision is 1 week minimum
• Always enunciate the dismissal with the option of altered conditions of employment in written
• Make sure that the dismissal with the option of altered conditions of employment is formulated in a way that does not allow a simple Yes or No as an answer
• To effect a dismissal with the option of altered conditions of employment right is not easy. Therefore try effecting changes in working conditions via your “Weisungsrecht” (directional authority)
• The offer of continuing employment with altered conditions has to be handed out prior to or along with the dismissal. It is not legal to first dismiss and afterwards making the offer of employment continuation with altered conditions
• Take into account in how far the employee is under dismissal protection
• Adhere to the directives of procedure and form that apply to dismissals, as well as the periods of notice
• It is of special importance for the validity of the dismissal with the option of altered conditions of employment that the altered employment conditions must be socially justified

For the employee:

• If you agree to the proposed alteration of employment conditions, you must accept the alteration within 3 weeks after receipt of notice of the dismissal with the option of altered conditions of employment. That will nullify the dismissal. If otherwise that period exceeds without any reply, the offer will be considered rejected and the dismissal will be effected
• If there is unclarity, better sign the dismissal with the option of altered conditions of employment adding the note “unter Vorbehalt” (under reserve). That reserve has to be clarified within 3 weeks after receipt of the dismissal notice. Within that period, you can have the social justification of the altered employment conditions clarified by the labour court, via an alteration protection action. For taking that action, there is also the deadline of 3 weeks after receipt of the dismissal notice. Until the case is clarified, the new, altered employment conditions are applied. You should have your agreement under reserve delivered by a messenger, or hand over yourself in the presence of a witness. If you lose this trial, the employment relationship will continue with the altered conditions, otherwise with the old conditions.
• If you do not agree to the alteration of employment conditions, you can file a dismissal protection action within 3 weeks after receipt of the dismissal notice. If you lose this trial, the employment will end. If you win, however, the employer must continue to employ you with the old conditions
• Only the altered employment conditions are renewed – the other parts of the employment contract remain valid as before (e.g. start of company membership)
• Be sure to adhere to the period for filing the action. If you do not, the dismissal with the option of altered conditions of employment will turn into a regular dismissal
• If you do not accept the offer of being employed further with altered conditions, the dismissal will take effect. In that case, your only legal action possible will be a normal dismissal protection action. Consider, though, the possible consequences of such action: if you lose the trial, even the offer of employment with altered conditions will be invalid, and you might have to get yourself a new job. Also, a dismissal protection action worsen your relationship with the employer. Therefore, it is more recommendable to accept the alteration offer under reserve and filing an alteration protection action
• In case of an extraordinary dismissal with the option of altered conditions of employment, you should accept under reserve, immediately, since the periods are not clearly defined here, but considerably shorter
• Be counselled by a lawyer how good your chance of succeeding with a legal action is

Information Sources

• Sample for Aenderungskuendigung (only in German)
  
• Sample for Aenderungskuendigung (only in German)

Last update: 12/30/2009