Transfers in the workplace: where the limits lie

• A transfer can be ordered by the employer without the employee having to agree.
• The right to issue instructions sets limits for the employer.
• There must be a fair balance of interests between employer and employee.
• The works council must approve the transfer.
• A transfer or demotion due to a reduction in salary is not permitted.
• If you wish to defend yourself against a transfer, agree to it with reservations and file a complaint at the same time.

As briefly described in the introduction, a transfer does not necessarily have to involve a change of work location. Rather, a transfer also exists if the employer changes the content of the employee's activity for a certain period of time and, for example, adapts the type and scope of the new activity. Thus, a transfer is normally deemed to have occurred if

• are assigned new work tasks that differ significantly from those previously performed,
• the employee is assigned to another company department or
• the employee is assigned a new place of work.

All of the above measures must extend over a certain period of time, according to Section 95 (3) of the Works Constitution Act for a period of more than one month. Short-term measures are not transfers in the traditional sense. For example, the completion of previously unassigned tasks for a few days is not considered a transfer.

As a rule, this is not the case. A transfer is a unilateral measure by the employer that is not dependent on the employee's consent. The prerequisite here is the legality of the ordered transfer. If the employer does not violate the limits of its right to issue instructions (see point 3 for more details) and if the works council (if present) is involved in the decision, the employee must usually accept the transfer.

With a transfer, the employer exercises its right to issue instructions. But what are the limits of this right? It is worth taking a look at Section 106 of the German Industrial Code (GewO). It literally states:

„The employer may determine the content, place and time of work performance at his reasonable discretion, insofar as these working conditions are not stipulated by the employment contract, provisions of a works agreement, an applicable collective agreement or statutory provisions. [...]“

Limits therefore result from regulations in employment contracts, works agreements, collective agreements or laws. If these limits are adhered to and the works council is properly consulted and its consent obtained, the transfer is very likely to be legal.

In principle, the employer must ensure that the interests of the employee are also taken into account appropriately. According to Section 106 GewO described above, an instruction must correspond to „reasonable discretion“. Obviously unfair treatment of the employee is therefore not possible. A fair balance of interests must be found between both parties.

The employer has quite a lot of leeway if no regulations on a fixed place of work are stipulated in the employment contract. Nevertheless, it is always important to maintain a fair balance of interests with the employee. As a rule, a commute of up to two hours to the place of work is still considered reasonable, especially for full-time employees. The commuting time can even exceed these two hours if the employer's business interests are urgent and the employee can reasonably be expected to accept the transfer.

The Federal Labor Court (BAG) made a special ruling in November 2022 when a German Ryanair pilot took legal action against his transfer from the closed Nuremberg site to Bologna in Italy. The BAG confirmed that transfers abroad can also be covered by the right to issue instructions. The employment contract did not limit the place of work to Germany and the transfer was also reasonable as there were no alternative locations in Germany (judgment of 30.11.2022, ref. 5 AZR 336/21).

If the employer complies with the limits of the right to issue instructions, involves the works council (if present) in the decision and observes the regulations laid down in the employment or collective agreement and in laws, a transfer is probably lawful. However, the interests of the employee must always be given due consideration in the decision. Examples include caring for close relatives or looking after children.

In general, a transfer to a lower-paid job is not permitted. In this case, the employer is violating the applicable limits of the right to issue instructions. The right to transfer only applies to an equivalent job in the contractually defined area of responsibility.

The employer's right to issue instructions sets limits on transfers. If the employer wishes to go beyond this, an amendment agreement or a notice of termination in lieu of a transfer are conceivable. In the case of an amendment agreement, the employer and employee can agree on changed contractual conditions. A notice of termination with a change of contract goes one step further. The company can change working conditions, set new conditions and draw up a new employment contract. After the notice period has expired, the employee can continue to work under the new conditions or the employment relationship is terminated if the notice of termination is effective.

If the company has more than twenty employees, the existing works council must be fully informed of the planned transfer of the employee. The works council must take action within a one-week period if it refuses to approve the transfer. However, the works council is not completely free to do so, but can only reject the measure for statutory reasons (Section 99 (2) of the Works Constitution Act). If the employer carries out a transfer without obtaining the consent of the works council, it is highly likely to be unlawful.

Just because the employer has not made use of transfer options for many years does not mean that its right to issue instructions has expired or diminished. Therefore, a transfer to another office or city is possible even after many years in the same job. Proceedings in which employees and their lawyers take action against the intended transfer by the employer, arguing that the right to issue instructions has been reduced, largely go in favor of the employer.

If there is no explicit provision in the employment contract, an employee is generally not entitled to a transfer to another department or place of work. An exception exists if the transfer becomes necessary for the employer to continue to fulfill its duty of care, for example in the event of bullying against the employee at their current workplace.

If you want to defend yourself against a transfer ordered by your employer, you should proceed as follows:

1. Involving a lawyer for employment law


2. Checking your employment contract with regard to transfer clauses and regulations on the place of work


3. Inform works council


4. Agree or comply with the transfer subject to reservation


5. Filing a complaint against the transfer at the same time

If you simply resign from your job or do not comply with the transfer, you could face a warning and lose your job. If the decision is made that the transfer was lawful, at least you will not lose your job. If the decision is in your favor, you will remain in your old job.