Terms which are considered "unfair" in employment law relate to liberties taken by the parties that result in disadvantageous contracts. Most often, these terms worsen the employee’s situation, and much less often the employer’s. Just as in consumer law, unfair terms in employment law become null and void, but the employment contract itself remains valid and is rewritten to restore the balance of power between the two parties.   

Overview of the terms that were examined

The trial period, which is designed to serve the interests of both parties, is one of the contractual terms which may be considered unfair, particularly when an employer decides to lengthen the trial period beyond what is legally allowed, or renews it. Renewal of the trial period may occur when a company is acquired and the new boss imposes a new trial period in order to evaluate the employee’s capacities him/herself. However, the law does not allow this. The penalty that is applied will be the reduction of the trial period in order to protect the worker from the precarious situation the employer tried to maintain him/her in.

Terms that infringe upon freedom to work such as those related to non-competition or exclusivity can also create an imbalance between the two parties. A part-time employee cannot be prevented from working concurrently in a non-competing industry, as long as he/she respects the obligation of good faith and there is no impact on his/her main job. Employers often request exclusivity, either because they don't want their employee to be tired out by a second job and thus less productive, or because they don’t want competitors to benefit from their employee's particular talents. At stake is the loyalty of the employee who cannot work for a competitor, even if these terms aren't explicitly stated in the contract. However, the employer may not establish a non-competition clause that applies even when the person is no longer his/her employee, except in very limited cases where permitted by law, for this would amount to limiting or even blocking the person's access to the labour market.

A particular situation

The employment stability clause is one of the few cases that can create an inconvenience or even an imbalance for the employer rather than the employee. An employer who agrees never to lay off an employee violates the basic principle of the sole ability to terminate a contract. This particular situation can occur when the company owner promises an employee with whom he/she is in a romantic relationship to never lay them off. If the relationship were to end, the employer would be caught in his/her own trap and would be forced to keep the employee. Likewise, if the owner were to pass away, the company heirs would be unable to fire this person, even if they weren’t qualified. In such a conflict, the court would overturn the employment stability clause. Employers may take measures to limit or reduce their own termination rights, but any clauses that completely eliminate the right to termination are forbidden by law.

This overview of the terms that were examined shows that both parties’ freedom is actually quite restricted. If there are clauses that attempt to stray from the strict and rigid rules governing employment contracts, this can create a disproportionate relationship that the law is often required to sanction.