Changes in working times and company integration management Federal Labour Court (Ruling of 18.10.2017 – 10 AZR 47/17).

Versetzung, Insight von Alexander Krol, Rechtsanwalt der Kanzlei Buse Heberer Fromm

Company integration management is not a prerequisite for the reassignment of a night shift to an alternative shift.

The plaintiff employee works for the defendant as a machine operator. Between 1994 and 2005, he worked an alternative shift (early shift/late shift), and since then he has been working the night shift almost exclusively. In 2013 and 2014, the plaintiff was incapacitated for 35 working days each. From 02.12.2014 to 26.02.2015, he could not work due to a treatment for addiction. Afterwards, he was put back on the night shift. On 25.03.15, a return to work discussion took place, which was not intended or conceived by the defendant as a measure of company integration management (Betriebliches Eingliederungsmanagement; BEM). Thereafter, the defendant gave the instruction to work an alternative shift.

The plaintiff then filed a suit with the aim of being reassigned to the night shift. He is of the opinion that the employer’s instruction is ineffective, since no company integration management had been carried out prior to the measure and, moreover, does not correspond to reasonable discretion (“billigem Ermessen”) within the meaning of § 106 of the Industrial Code (Gewerbeordnung, GewO), § 315 of the German Civil Code (Bürgerliches Gesetzbuch; BGB). The defendant believes that a permanent night shift is generally more damaging to health than any other working time. The defendant could therefore use the reassignment to determine whether the plaintiff’s health situation had improved when he was placed on an alternative shift. In addition, the plaintiff is easier to replace when absent from an alternative shift rather than from a night shift.

The Labour Court dismissed the claim, while the Higher Labour Court granted it (Higher Labour Court of Baden-Württemberg, Ruling of 22.11.2016 – 15 Sa 76/15). The defendant’s appeal before the Federal Labour Court was successful. The implementation of company integration management in accordance with § 84 para. 2 Book IX of the Social Code (Sozialgesetzbuch IX; SGB IX) is not a formal prerequisite for the effectiveness of a reassignment. This also applies in cases where instruction is also based on reasons related to the employee’s state of health. The decisive factor is rather whether the employer’s instruction on the whole corresponds to reasonable discretion within the meaning of § 106 sent. 1 GewO, § 315 para. 1 BGB. All circumstances of the individual case have to be taken into account.

Due to the Federal Labour Court’s lack of sufficient findings on these circumstances, the Federal Labour Court was unable to reach a final decision. This led to the case being referred back to the Higher Regional Court.

Recommendation for practice:

The Federal Labour Court’s ruling, which has so far only been published as a press release, is to be welcomed. It fits into the case law on the effectiveness of termination (cf. Federal Labour Court, Ruling of 07.12.2006 – 2 AZR 182/06; Federal Labour Court, Ruling of 13.05.2015 – 2 AZR 565/14). Accordingly, the implementation of company integration management is not a milder measure and therefore not a formal prerequisite for termination. In this respect, the requirement of § 84 para. 2 SGB IX substantiates the principle of proportionality. The reassignment itself is a milder measure than termination, but it is not governed by an independent principle of proportionality. In both cases, company integration management is not a milder measure that has priority.