The allocation of a job which does not meet the requirements of Sec. 618 para. 1 German Civil Code (Bürgerliches Gesetzbuch, BGB) in conjunction with the public occupational health and safety standards may nevertheless correspond to the employer’s equitable discretion if it concerns only minor or short-term infringements which cannot cause lasting damage.

This is what the German Federal Labor Court (Bundesarbeitsgericht, BAG) decided in its judgement of 28 June 2018, docket number 2 AZR 436/17.

The parties disputed the existence of an employment relationship. Since 2006, the plaintiff (former employee) had been employed by the defendant (the employer) as head of the “Technical Documentation” department. There were on-going conflicts between the plaintiff and other employees. In November 2012, the plaintiff’s employer withdrew the line of responsibility from the plaintiff. In February 2014, five employees in the department requested a transfer of the plaintiff to a different location. In their view the plaintiff sought conflicts and did not maintain an appropriate distance. As a result, many employees avoided entering common rooms in order to avoid the plaintiff. In May 2014, the employer commissioned the plaintiff to draw up a “building book” and transferred her away to the respective building to be examined. There were no other offices in this building. The plaintiff received a workroom with a desk and a simple wooden chair. The plaintiff also received the order to furnish her workplace with the necessary IT and communication equipment as well as any additional furniture. In the absence of a time stamp clock, she was to document her working hours by hand and send an e-mail for checking purposes at the start and end of her duties. The plaintiff refused the job due to the assignment of non-contractual duties and insufficient office equipment. After repeated warnings, the employer terminated the plaintiff’s employment with extraordinary immediate effect. The Labor Court Munich granted the dismissal protection action. The appeal was unsuccessful.

The BAG clearly indicated that the allocation of specific job duties for reasons of efficient completion of work tasks and because of the objective of protecting the remaining employees from further contact with the plaintiff corresponded in principle to equitable discretion. In the opinion of the BAG, merely minor or short-term violations of occupational health and safety standards that cannot cause lasting damage do not make the workplace unacceptable. The same applies to the instruction to the plaintiff to set up its own workplace. This one-off additional work represents at most a temporary “inferior” activity. Furthermore, the Court stressed that the plaintiff had not been completely isolated from other employees and had not been spun off from the operational organisation. Rather, the plaintiff had remained assigned to its previous operational unit and had had contact with other employees through its networked workplace.

The BAG thus clarifies that the mere possibility of a health hazard from a transfer is not yet sufficient to make the transfer violate the principle of equitable discretion because of a breach of the employer’s duty of care. Accordingly, there is no right of retention in the employment relationship in favour of the employee pursuant to Sec. 273, 618 BGB in the event of only minor or short-term violations of occupational health and safety obligations by the employer. If an employee nevertheless refuses his or her obligation to work because he or she believes that he or she is entitled to do so because of an unfair instruction, he or she shall bear the risk that his or her opinion may prove to be wrong. In case of doubt, employees should therefore be advised to follow such allegedly unreasonable instructions.

It is also noteworthy that the BAG considers the protection of other employees from the plaintiff to be a valid reason for transferring the plaintiff. The court referred here to its jurisdiction in “mobbing cases”. In those cases the question arose whether measures of the employer violate the personality right of the plaintiff employee. In the present judgment, the right of personality of the remaining employees now serves as a possible justification for measures against the plaintiff employee.

On 23 April 2018, the European Commission presented its draft directive “proposal for a directive of the European parliament and of the council on the protection of persons reporting on breaches of Union law”. The proposal is based on the official Council of Europe Recommendation on the protection of whistleblowers of 2014, according to which …