On 4 September 2025, the Court of Justice of the European Union (CJEU) decided that the termination of an employment contract following an employee’s refusal to accept a unilateral change of workplace, within the context of a collective mobility scheme, may be classified as a ‘dismissal’ within the meaning of the Collective Redundancies Directive (Directive 98/59/EC) (the Directive). However, if employees are required by a collective agreement to accept such a change, any termination following refusal is considered a dismissal for reasons pertaining to the individual employee. In such cases, the dismissal does not count towards the number criterion set by the Directive (ECLI:EU:C:2025:661).
Facts
A French employer, operating in telecommunications infrastructure and digital development, lost a major contract in the Gard and Lozère departments. Consequently, a collective agreement on internal mobility was concluded with several employee organisations. Under this agreement, two employees were offered a change of workplace, which they declined. The employer subsequently terminated their employment contracts on economic grounds.
In the subsequent proceedings before the French courts, the central question was whether these terminations constituted ‘dismissals’ within the meaning of Article 1(1) of the Directive. The French Cour de Cassation referred the matter to the CJEU, asking whether termination due to refusal to accept the terms of a collective mobility agreement should be considered a ‘dismissal’ under the Directive.
Legal Framework
The Directive, implemented in the Netherlands by the Collective Redundancy (Notification) Act (WMCO), sets a number criterion to determine when a collective redundancy occurs. Once this criterion is met, the employer must comply with the information and consultation obligations under the Directive. In the Netherlands, the threshold is reached when an employer intends to dismiss twenty or more employees within a single work area over a three-month period.
Although the Directive does not provide a detailed definition of ‘dismissal’, established case law confirms that it covers any termination of employment initiated by the employer for reasons not related to the individual employee and which is not wanted by the employee.
CJEU Judgment
The CJEU established the following framework for determining whether refusal to accept a change of workplace constitutes a ‘dismissal’ under the Directive:
- If, under national law, employees are obliged to cooperate with or consent to a change of workplace pursuant to a collective agreement concluded with trade unions, a subsequent dismissal does not qualify as a dismissal under the Directive. In such cases, refusal is considered a breach of the employment contract, and termination is based on reasons relating to the individual employee, falling outside the Directive’s scope.
- If no such obligation exists, the national court must assess whether the proposed change constitutes a substantial change to an essential element of the employment contract. If the workplace is an essential element and the change is substantial, termination following refusal qualifies as a dismissal under Article 1, first paragraph, of the Directive.
- If the workplace is not an essential element, or the change is not substantial, the termination does not fall under the primary definition of dismissal in the Directive. However, it must then be treated as a dismissal under Article 1, second paragraph, of the Directive. In such cases, the termination is included in the calculation of the total number of dismissals, provided it does not relate to the individual employee and affects at least five employees.
Practical Implications
In practice, the national court must first determine whether employees are required by the employment contract and any collective agreement to consent to the proposed change of workplace.
If such an obligation exists, refusal is considered a breach of contract. The termination is then based on personal grounds and falls outside the Directive’s scope, meaning it does not count towards the number criterion used to determine the existence of a collective redundancy.
If no such obligation exists, it must be assessed whether the proposed change constitutes a substantial change to an essential element of the employment contract. Factors such as the temporary or permanent nature of the change, the distance between the original and new workplace, and any compensatory measures must be considered. If a substantial change to an essential element is found, termination following refusal qualifies as a dismissal under Article 1, first paragraph, of the Directive.
If there is no substantial change, the termination is not considered a dismissal under the Directive, but must still be included in the calculation of the total number of dismissals under Article 1, second paragraph, of the Directive, provided that at least five such terminations occur.