An employee subject to special protection (e.g. an employee of pre-retirement age or a trade union activist) may obtain an interim measure securing a claim for reinstatement by obtaining an order for their continued employment for the duration of the proceedings. This does not, however, cover change notices.

Securing a claim for reinstatement

Since September 2023, provisions have been in force under which an employee seeking a declaration that a termination notice is ineffective, or seeking reinstatement, may obtain an interim measure ordering their continued employment until the proceedings are concluded with a final, non-appealable judgment.

This regulation concerns employees subject to special protection against the termination of employment. These include employees of pre-retirement age, social labour inspectors, trade union activists and pregnant women.

The court will grant the interim measure if the employee makes the claim plausible. In practice, it is sufficient to submit the termination notice or summary dismissal notice and invoke the special protection.

What about change notices?

Doubts have arisen as to whether this interim measure applies to change notices (i.e. notices amending terms of work and pay). This concerns, for example, a situation where an employee’s position and pay are changed. In our view, in such a case there are no grounds for a court to order employment on the previous terms until the proceedings are concluded.

The doubt stems from the fact that, under the Labour Code, provisions on termination notices apply accordingly to notices amending terms of work and pay. Proponents of covering change notices by the interim measure rely on this, arguing that it provides a basis for applying the security in such cases.

We do not agree with this argument. The “corresponding application” provision is a substantive law provision (it is contained in the Labour Code). The interim measure, by contrast, is procedural in nature (regulated in the Code of Civil Procedure). Corresponding application should therefore be applied within substantive law (e.g. as to the form and reasoning for a change notice), but there is no basis for referring to procedural provisions that do not contain a rule on the corresponding application of interim measures to change notices.

In addition, the provision on the interim measure refers to an employee subject to special protection against the termination of their employment, by notice or without notice, who is pursuing a claim for a declaration of the ineffectiveness of their termination or for reinstatement. It does not mention change notices. Importantly, the interim measure in question significantly interferes with employment policy. It should therefore be interpreted strictly and should not be subject to extensive interpretation.

What do the courts think?

In the courts’ view, the interim measure does not apply to change notices (although we have encountered a court that took a differing position). We are handling a case concerning an employee under special protection who received a change notice and sought an interim measure (in this case there was no breach of special protection, because the notice was justified by a reason not attributable to the employee). The district court dismissed the employee’s motion for the reasons set out above.

The same view was taken by the regional court hearing the employee’s appeal. Importantly, due to its complexity, the case was heard by a panel of three judges (rather than a single judge, which is standard). This suggests that the above interpretation is not an isolated view, but the beginning of a line of case law.

It is worth noting that, in the regional court’s view, the interim measure might potentially apply to change notices where the employee refuses to accept the new terms, resulting in the termination of the contract. However, the regional court did not determine this unequivocally. In our view, the interim measure should not apply in such cases either. Whether the contract terminates or not is irrelevant from the perspective of the arguments against applying interim measures to change notices.

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