An employee has been working for a multinational since 1st April 1999 where he occupies the position of project leader, also known as ‘region manager’. Since mid-2001, his performance in the position has been the subject of discussion. He is said to have a good technical knowledge, but is reproached for not being commercial and not taking any decisions. In April 2001, a career path was started as a result of which the employee was given another position. A coaching programme was also started. The position of head of personnel was investigated by an external bureau but found to be unsuitable. In January 2003, the employee began working on a temporary basis as project manager. Following the end of the project, the employee accepted the position of manager of business administration on an interim basis. Since he performed well in this position, the employer offered it to him on a permanent basis but the employee refused it on account of the inferior employment conditions. Another position was also refused by the employee for this reason in April 2005. Nevertheless, the employee did actually carry out this position and did so to the satisfaction of the employer. However, the employer wanted to adjust the employment conditions of the employee to the lower position. In November 2005, the employer did so unilaterally by fixing the salary at the maximum of the corresponding CEA scale and paying out the remaining salary difference as a personal bonus. This personal bonus would be reduced by the sum of the increases of the CEA wage, so that the existing salary is actually frozen until it has overtaken by the CEA wage. In addition, the employee had to be satisfied with a cheaper lease car.
The employee was not in agreement with this and requested the sub-district court judge to order payment of his former salary including the increases of the CEA wage. When the sub-district court judge rejected these claims, the employee appealed to the court of justice, but the court confirmed the ruling of the sub-district court judge. According to the court, the em-ployee had sufficient reason to propose an amendment of the employment conditions due to the employee’s underperformance (not disputed by the employee) in his previous position. The interest of the employer in treating employees in similar positions as equally as possible plays a role in this regard. The court also found the proposal to be reasonable, because the employee was already being paid more than is required on the basis of the CEA and for the time being even more than the maximum of the relevant CEA scale. According to the court, it could have been reasonably expected of the employee that he would agree to the proposal.