Attention to the climate and sustainability is increasing in society. This translates not only within the boardrooms of companies, but also in the workplace into many questions about making existing employment conditions more sustainable or introducing green working conditions. Consider, for example, the granting of extra vacation days if the employee goes on holiday by train, a net bicycle kilometre allowance or a green bonus. In other words: employment conditions that encourage employees to reduce their CO2 footprint.

What an employer should think about when changing or introducing green terms of employment is briefly explained below:

• Changing terms of employment requires first of all agreement with the employee. If no agreement is reached, an employer can only make a unilateral change on the basis of a unilateral amendment clause or good employment practices. In both cases, this involves a balancing of interests, in which the interests of the employer must outweigh the interests of the employee. If an employer can substantiate that a change in terms of employment conditions, for example, is in line with its sustainability policy or is required to comply with a legal obligation, it is conceivable that the balance of interests will be in favour of the employer.
• In addition, an employer must involve the Works Council – if it has been set up – in a timely manner. In many cases, the Works Council’s right of advice and consent will be a requirement for the introduction of green terms of employment and/or an environmental policy.
• It is also possible that the Works Council is exercising its own duty of care, namely to promote that the organisation takes care of the environment. For example, by initiating a consultation meeting, requesting information about current environmental policy or making proposals to improve environmental policy.
• Finally, when implementing green terms of employment, an employer should be aware of unequal treatment of employees. Preferably by designing the terms and conditions of employment in such a way that all employees can make use of them, if desired. In that case, the same work is paid equally under the same conditions.

Are you planning to implement ‘greener’ employment conditions within your organisation? Then first apply a balancing of interests involved, involve the Works Council in a timely manner if this is a requirement and be aware of unequal treatment. If you have any questions about this subject or if you would like to discuss the introduction of green terms of employment, please contact one of our employment law specialists.

This article was published in the Newsletter Vestius of April 2024