Transfers to another workplace in Germany: your rights and how to push back

Sometimes employers in Germany transfer employee’s to different workplaces or change working duties by unilateral instructions. Such a unilateral change of the workplace (Versetzung) or working duties must follow certain rules. It must be carried out within the scope of the employer’s right to issue instructions (Weisungsrecht) and comply with contractual provisions. It must not be arbitrary. The following article explains the requirements of valid transfers to other workplaces or change of working duties.

Key points at a glance:

• A unilateral change of the work place (Versetzung), working duties or working hours by the employer is only valid, if the instruction is within the scope of the employer’s right to issue instructions (Weisungsrecht) and is exercised in a reasonable discretion (billiges Ermessen).
• The extent of the right to issue instructions arises from the employment contract, collective agreements or statutory provisions.
• If a works council (Betriebsrat) exists, the employer must obtain its consent. 
• If a unilateral change is valid, it changes the contract and is binding. If there is a dispute, it is advisable to accept a unilateral change subject to a final decision of the Labour Court.

What is a unilateral change?

A unilateral change is a permanent or fixed-term change of the work place (Versetzung), working duties or working hours by the employer.¹ In general, a employer can determine the content, place and time of work in more detail within a reasonable discretion, provided that these working conditions are not already regulated in the employment contract, a collective agreement or statutory provisions.

Requirements for a valid unilateral change

The employer can only unilaterally change the workplace or working duties under the following requirements:

1. Employer’s right to issue instructions

The unilateral instruction must be within the scope of so-called “right to issue instructions” (Weisungsrecht or Direktionsrecht) of the employer:

• The employment contract primarily determines the extent of the right to issue instructions. The employment contract can contain general or very specific descriptions of work duties. The more specific the description in your employment contract, the more limited is the employer’s right to issue instructions. With only a general description of duties, it must be clarified what specifically falls within this scope or not. The content has to be examined on a case-by-case basis. 
• A collective agreement (Tarifvertrag, Betriebsvereinbarung) can limit the employer’s right to issue instructions as well. 
• The right to issue instructions only covers “equivalent duties“. This again might be determined by collective agreements (e.g. pay grades), or the common public understanding or the “social perception” of the activity.  

2. “Reasonable discretion” 

The unilateral instruction must be in accordance with “reasonable discretion“. The law does not define, what is reasonable, but the Labour Courts have developed a certain understanding:

• An instruction is reasonable, if the employer appropriately takes the interests of both parties into account. This depends on each individual case.
• The protected interests of the employee depend on the individual situation, e.g. age, state of health, disabilities, family situation etc. 
• The protected interests of the employer are mainly operational concerns. 

Examples from the labour courts

• Unilateral change regarding the place of work: (1) If the parties did not agree on a place of work, the right to transfer the employee is much broader. (2) If there is general clause of transfer, the employer has to follow the requirements of that clause. (3) If a place of work is fixed and it is clear from the circumstances of the individual case that the employee must exclusively work there, a transfer is not possible. This is rarely the case, however. The courts decide rather generously on the possibility of transfers, especially in the case of field work, construction work (nationwide), flight crew (even abroad) etc. The decision always depends on the individual case.
• Unilateral change regarding work duties: The basic rule is that the more specific the description in the employment contract, the more restricted is the right to issue instructions. It is clear what belongs to the duties of a “crane operator” or “driver”. It becomes more difficult with more general descriptions, such as “commercial employee”, “administrative employee”, “production assistant” etc.
• Unilateral changes regarding working hours: This refers to the beginning and end of working hours, not the duration. An employer cannot order overtime unilaterally, since this concerns the duration of working hours and is only temporary. The employer cannot unilaterally change the duration of the working hours (extension/reduction). In this case a dismissal with an offer of amended terms (Änderungskündigung) is necessary (see below). Examples: assignment of new shifts or split of working hours (provided no works council exists). The decision always depends on the individual case.

Unilateral changes with an existing works council  

If a works council (Betriebsrat) exists, additional rules apply:

• The terms “transfer” is defined in the Works Constitution Act² : a transfer in terms of this Act is the assignment of a different work area which is likely to exceed a duration of one month, or which is associated with a significant change in the circumstances under which the work is to be performed. 
• In businesses with more than 20 employees entitled to vote, the employer must obtain the works council’s consent in such a case. The works council can refuse consent. In this case, the employer must go to the Labour Court and apply for the consent through a court decision.

Alternatives to a unilateral change

If the employer cannot unilaterally change working conditions, the employer can either obtain the consent of the employee or can issue a dismissal with an offer of changed terms (Änderungskündigung). This is subject to stricter requirements:

• A dismissal with an offer of changed terms does not primarily aim to terminate the employment relationship, but aims to continue just with changed working conditions. Such a dismissal (Änderungskündigung) must meet all the requirements of an ordinary dismissal.
• If a works council exists, the employer must consult the works council on the dismissal³ and on the transfer in terms of the Works Constitution Act.⁴  

If you receive a dismissal with an offer of changed terms, you can do the following:

• You can accept the dismissal with the offer of changed terms: your employment relationship then continues under the changed working conditions.
• You can reject the dismissal with an offer of changed terms: the dismissal then becomes a termination dismissal. You can file an action against the termination.
• It is advisable to accept the dismissal with an offer of changed terms under reservation: your employment relationship then initially continues under the changed working conditions. If a court later finds that the changes were invalid, your employment relationship continues with the unchanged conditions. 

A further option for the employer: they can try to negotiate the intended changes with you. If you and the employer reach an agreement, you can conclude a new employment contract on new terms. The advantage: you can bring your own ideas into the negotiations and possibly also negotiate salary increases. A disadvantage: You must keep in mind that you do not lose existing claims and rights under the old contract.

We always recommend that you consult a lawyer specialized in employment law.

Legal consequences of a (in)valid unilateral change

If the employer has issued a valid unilateral change, the following applies:

• The valid instruction changes the employee’s duty to perform. 
• If employees do not comply with the new duties, they breach their contractual obligations. As a rule, the employer can take disciplinary measures depending on the individual case. This also includes written warning and dismissals.

If the employer has issued an invalid unilateral change, the following applies:

• The invalid unilateral change is not binding. 
• The employee does not have to comply with the non-binding instruction.
• The employment relationship continues under the previous working conditions. 
• If the employee nevertheless complies with the non-binding instruction (e.g. transfer to another city), the employer is liable for damages (e.g. travel costs, relocation costs etc.) in case that a court later finds that the instruction has been invalid.  

Legal steps against unilateral changes

If the employer has unilaterally changed the terms and conditions, you can do the following:

• First, check the content of your employment contract.
• If there is a works council, you should get in touch with it.
• You can first try to speak with your employer or HR department.
• If all this is unsuccessful, you can file a court action. Since this can place a significant strain on your employment relationship, you should first get in touch with a lawyer specialized in employment law. They can assess your individual situation and advise you accordingly.

Frequently asked questions (FAQ)

1. Section 106 Gewerbeordnung (GewO) ↩︎
2. Section 95 subsection 3 BetrVG ↩︎
3. Section 102 BetrVG ↩︎
4. Section 99 BetrVG ↩︎