In its decision dated 26 January 2012, the Federal Labor Court dealt with the issue of the validity of a dismissal with the option of altered conditions of employment. This decision of the Federal Labor Court brings further clarity on these types of dismissals. An unnecessary dismissal with the option of altered conditions of employment represents a directive of the employer according to the Federal Labor Court. If the employee files a lawsuit for protection against such an “unnecessary” dismissal, the employee’s lawsuit is always then without merit if the company would have already been able to implement the change to the conditions of employment without a corresponding dismissal within the context of its right to issue directives.
If it is uncertain whether the employer can assign an employee a new position on the basis of its right to issue directives or whether a dismissal with the option of altered conditions of employment is necessary for altering the contractual conditions, the company can now more easily choose the method of issuing such a dismissal. If it is determined within the scope of a lawsuit for protection against such a dismissal that the employer would have been able to assign the new work conditions within the scope of its right to issue directives, the lawsuit is without merit. This at least applies in the case that the employee accepted the offer of altered conditions of employment and had the changes reviewed for their social justification.
The Federal Labor Court did not decide the case in which the employee does not accept the company’s offer and therefore places his employment relationship at the employer’s disposal. However, according to the past decisions of the Erfurt judges, the offer of altered conditions of employment must also then be reviewed in terms of its social justification. If the other requirements for its social justification are fulfilled and only the offer of altered conditions of employment is the crucial factor, such a termination of the employment is also likely to be socially justified. This is because it can in any case be reasonably expected of an employee to accept such duties, which the employer can already assign within the scope of its right to issue directives using equitable discretion, and does not represent a socially unfair offer.
The article was published in August 2013 in the renowned legal journal “Arbeit und Arbeitsrecht” (pg. 490, 491).
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