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When conflict between two employees becomes serious, one option is to transfer one employee to a different workplace or department. But is an employer allowed to do so in Germany and under what conditions? This article provides insight.
Conflicts in the workplace are almost impossible to avoid. Particularly when working closely together, differences of opinion among colleagues can easily arise. If a dispute gets out of hand or degenerates into bullying, this can seriously jeopardise peace in the workplace. If the conflict has become entrenched, sometimes the only solution is separating the employees concerned. But what options do employers have? In particular: do employers have to find out who started the dispute in advance? The Mecklenburg-Vorpommern Labour Court (Germany) has clearly stated: no.
Employer's right to transfer an employee
In principle, an employer can, by virtue of its right to direct employees, determine the content, place and time of work performance at its own discretion (article 106 sentence 1 of the German Trade Ordinance). Basically, it is therefore possible to transfer an employee to another place of work. This only changes if a specific place of work is specified in the employment contract and the employer has not expressly reserved the right to assign the employee to another place of work.
However, transfer to another place of work is only permissible within the scope of an employer's 'reasonable discretion' (article 106 sentence 1 of the German Trade Ordinance in conjunction with article 315 of the German Civil Code). The mutual interests of the employer and the employee must therefore be weighed against each other. Compliance with the limits of the employer's right can be reviewed by the labour courts.
The Mecklenburg-Vorpommern Labour Court decision
In its decision of 30 July 2019 (Ref. 5 Sa 233/18), the Mecklenburg-Vorpommern Labour Court (Germany) had to deal with the transfer of a cook to another place of work.
The plaintiff employee had been employed as a cook by the defendant employer, which operates a nursing home, since 1990. The transfer was preceded by a serious dispute between the plaintiff and the kitchen manager in May 2017 concerning the quantity of food to be prepared. Since then, the plaintiff had been incapable of working.
Both parties to the dispute described the relationship existing between them as having irretrievably broken down. The plaintiff accused the kitchen manager of 'very serious and sustained bullying'. As a result, the plaintiff was transferred to a place of work about 50km away in November 2017. The defendant employer justified the transfer, among other things, on the grounds of the strained company atmosphere and the resulting impairment of work processes. A place of work was not specified in the plaintiff's employment contract.
The plaintiff contested her transfer in court, arguing that it was not based on a fair assessment of the situation. Among other things, she claimed that the defendant should have fully clarified the conflict before the transfer was announced and the person responsible for the dispute should have been identified in a joint discussion with all concerned. She argued it would also have been necessary to hear her side of the story. Finally, she argued her transfer was not reasonable on health grounds.
The lower court dismissed the plaintiff's action and the Mecklenburg-Vorpommern Labour Court confirmed that decision, holding that the transfer was effective. This decision is final.
According to the Court, the transfer was made in accordance with the principle of the employer's equitable discretion (within the meaning of article 106 sentence 1 of the German Trade Ordinance). It is for the employer to decide how to react to situations of conflict, without prejudice to their origins. In particular, the employer was not required to clarify the cause of and responsibilities for the conflict: this is not relevant for an effective transfer.
Since the applicant had accused the kitchen manager of 'very serious and sustained bullying', it was permissible, or even necessary, for the employer to put in place a rapid and effective resolution of the conflict situation. The applicant's transfer was an appropriate measure to resolve a conflict that had arisen from day-to-day cooperation quickly and effectively. Given the advanced stage of the conflict, the disadvantages for the applicant associated with the transfer were limited and therefore reasonable.
Implications for practice
In the event of conflicts between colleagues, a detailed clarification of responsibilities is usually impossible or at least involves considerable effort for the employer. Both the disruption to the atmosphere in the workplace and the employer's duty of care can (for example where there is an accusation of bullying) make it necessary to act quickly and effectively.
Against this background, the decision of the Mecklenburg-Vorpommern Labour Court is to be welcomed. According to this decision, employers do not have to clarify the causes of conflicts completely before transferring an employee. In order to remedy the situation quickly, even transferring a victim of bullying may be permissible, provided this meets the standard for the employer's reasonable discretion. In this way the employer can ensure that conflicts, which often arise from employees working together day-to-day, are resolved promptly and effectively.
However, a transfer alone does not exempt the employer from a subsequent investigation of bullying allegations. Otherwise, claims for damages may arise under the German Equal Treatment law, or from contract or tort law. Once the facts of the case have been fully clarified, further labour law measures against those responsible are possible, including extraordinary dismissal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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