From the clinic ward to administration, from Düsseldorf to Berlin: a transfer can mean a major change for employees. But is it just possible?
Change of department or even a change of place of work: are employers allowed to transfer their employees just like that? This question depends on the content of the employment contract, says Johannes Schipp, specialist lawyer for labor law in Gütersloh. "Employment contracts give employers a certain right of direction," says the legal expert. Before a potential transfer, it must be checked on the basis of the respective employment contract how far the employer's right of direction extends.
"The managerial right can certainly mean that employers can transfer an employee," says Schipp. However, a limit is exceeded when employers assign an employee an inferior job. "The managerial right extends only to equivalent activities." This means: If there is an activity with the same quality requirements elsewhere in the company, employees will not necessarily be able to resist a transfer.
In addition, the following applies: If the employment contract contains specific information that an employee is employed for a very specific department, it is not within the employer's managerial right to transfer him or her.
Similar conditions also apply to relocation. It must be checked in the employment contract whether a transfer is permissible or not. "For a bank with many branches in the region, for example, it shouldn't be a problem to transfer an employee to another location," says the specialist lawyer. But a move from Düsseldorf to Munich is also an option.
An essential point is: "The employer must exercise so-called equitable discretion when making such a decision as to how to exercise his managerial rights." This means that employers cannot simply proceed arbitrarily. Rather, the mutual interests of employee and employer must be carefully weighed before the transfer.
"The severity of the transfer also plays a role," says Schipp. The transfer from one department to another is much easier than the transfer, which requires a move from Munich to Düsseldorf.
About the person: Johannes Schipp is a specialist lawyer for labor law in Gütersloh and a member of the German Lawyers' Association (DAV).
(This article was first published on Monday, January 16, 2023.)
