New duties, a different place of work, or a changed reporting line: these are changes that regularly arise during an employment relationship. In many cases, such measures may appear operationally simple. At the same time, employers are often under considerable time pressure to implement them. However, one point employers should not overlook when preparing such changes is that they may constitute a job transfer from an employment law perspective. In this context, two questions are particularly relevant:
May the employer unilaterally order the measure?
Must the works council be involved?
Employers should not wait to examine these questions until jobs are fundamentally redesigned, a matrix structure is introduced, or major restructurings are planned. Even changes to duties that appear minor from the company’s perspective may be legally relevant. This article outlines four mistakes that employers should, in any event, avoid when implementing a job transfer involving the works council.
Employers should keep one basic principle in mind:
If the works council must be involved, this requirement applies even if the employee agrees to the job transfer.
Mistake No. 1: Misunderstanding the concept of a job transfer under works constitution law.
Whether the works council must be involved before the job transfer depends on whether there is a job transfer within the meaning of works constitution law. This must be distinguished from the question of whether the job transfer is covered by the employment contract and the employer’s right to issue instructions.
When does a job transfer exist?
A job transfer must be assessed on two separate levels:
Job transfer in the relationship between employer and employee:
This concerns whether the employer may assign a different place of work or different duties on the basis of the employment contract and its right to issue instructions.
Job transfer under works constitution law:
This depends on whether employees are in fact assigned to a different work area. Such a transfer exists if the change is expected to last for more than one month or entails a substantial change in working conditions.
In the relationship between employer and employee, the decisive question is whether the employer is entitled, on the basis of the employment contract and its right to issue instructions, to assign a different place of work or different duties. By contrast, for purposes of works council involvement, the key issue is the extent to which the employee’s actual duties or working conditions change. In particular, duties, responsibility, place of work and organisational position are relevant. A job transfer under works constitution law will generally exist where new duties alter the overall character of the employee’s work. By contrast, a mere change in reporting line or, for example, a change in customer responsibility for employees in sales will generally not suffice.
Mistake No. 2: Providing incomplete information to the works council.
The works council must be fully informed before the job transfer. If necessary information is missing, the one-week period for the works council to refuse consent does not begin. The information to be provided includes, in particular, the affected employees and their personal details, the previous and future work area including duties, responsibility, place of work and organisational position, the intended timing and duration of the measure, its effects, the contemplated position, and the intended grading or regrading. The required documents must also be submitted.
The employer may still provide missing information during court proceedings for the substitution of consent. However, it must make clear that it is supplementing its previously incomplete notification.
Mistake No. 3: Failing to inform all relevant works councils.
Where the place of work changes, employers should also examine whether the transfer is to another plant for which a different works council is responsible. In that case, the measure constitutes a job transfer from the perspective of the previous works council and a hiring from the perspective of the new works council. Both works councils must therefore be involved in separate procedures.
Mistake No. 4: Failing to observe the short deadlines for provisional job transfers.
If the works council refuses consent in due time and states a statutory ground for doing so, the employer may generally not implement the job transfer. If the measure is urgently required for objective reasons, it may exceptionally be implemented on a provisional basis. This is conditional upon compliance with the prescribed procedure:
The employer must immediately inform the works council of the provisional measure and the objective urgency on which it relies.
The works council must challenge the urgency without undue delay.
The employer must then apply to the labour court within three calendar days (!) both for substitution of the works council’s consent and for a determination that the measure is urgently required.
Please note: The three-day period continues to run over weekends and public holidays.
Practical tip: If a refusal of consent is foreseeable, prepare the draft application for the labour court proceedings at an early stage.
Conclusion
If you are planning changes to an employment relationship, you should therefore
carefully assess the works council’s participation rights,
provide the works council with all required information in good time,
take into account any parallel participation rights, and
strictly comply with the tight deadlines where provisional implementation is concerned
Particularly in the case of larger structural changes, a consolidated consultation process may also be appropriate.
Do you have further questions on this topic?
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