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A pilot sued a Ryanair subsidiary because he was transferred from Nuremberg to Bologna, Italy (symbol photo)
Photo: Clara Margais / picture alliance / dpa
The pilot from Nuremberg was actually only interested in having his transfer to Bologna, Italy, declared illegal.
He did not achieve this with his lawsuit through all German labor court instances.
But in Erfurt he ensured a judgment by the Federal Labor Court that can affect a large number of employees in Germany - especially if they are employed in a company that operates worldwide.
In their judgment, the highest German labor judges ruled that employees can be permanently transferred abroad unless otherwise agreed in the employment contract (reference number: 5 AZR 336/21).
Employers' right to issue instructions regarding the place of work applies not only to Germany, but also to international locations.
However, according to the labor judges, there must be a case-by-case examination as to whether the transfer to another country is reasonable for the employee.
The reason for the decision
In essence, they justified their judgment as follows: "The employer can instruct the employee to work at a company's place of work abroad on the basis of his employment contract right, unless something else has been expressly agreed in the employment contract or the circumstances indicate something else." Before a transfer abroad there must be a two-stage test, said a court spokesman.
“Is the transfer legal?
And is it reasonable in the specific case?” Lawyers speak of an equitable test that must be carried out.
The sticking point
Ultimately, it was "about the interpretation of paragraph 106 of the trade regulations," said the presiding judge, Rüdiger Linck, at the hearing.
It regulates the employer's right to issue instructions - its application with regard to the place of work is controversial among labor judges.
The pilot's lawyer considered the contractually agreed transfer clause in his client's contract to be invalid because, in his opinion, the trade regulations only permitted a transfer within Germany.
He couldn't score with this argument.
With its judgment, the Federal Labor Court created clarity in the interpretation of the passage in the trade regulations.
"A limitation of the right to give instructions to places of work in the Federal Republic of Germany cannot be inferred from the law," according to the federal labor judges.
The controversial paragraph 106 states: "The employer can determine the content, place and time of the work performance at his reasonable discretion, insofar as these working conditions are not specified by the employment contract, provisions of a company agreement, an applicable collective agreement or statutory provisions."
The case
The specific case concerned the pilot of a subsidiary of the Irish airline Ryanair.
The man complained to the highest court of labor against his permanent transfer from Nuremberg, where the airline closed its station, to the airport in Bologna, Italy.
He considered the transfer from May 2020 to be ineffective.
His lawyer pointed out that his client lost more than 50,000 euros a year as a result.
It was agreed in the plaintiff's employment contract that the pilot could also be employed at any other company location and that his remuneration would be adjusted to the rates customary in the respective country.
The consequences
In the opinion of the Bonn labor lawyer Gregor Thüsing, the decision of the Federal Labor Court has far-reaching effects: The world of work is becoming more and more international, but no place of work is specified in many employment contracts.
This could be determined by employers according to operational needs - "however, the interests of the employee must be sufficiently taken into account," says Thüsing.
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