Obligation of an unreasonable transfer order

A dispute often arises between employer and employee over a transfer order. This is particularly the case when it is a local transfer. The employee may have family roots in the city in which he works for his employer at the time of the instruction and is not willing to move to another city.

Basic requirement for a transfer instruction
The prerequisite for such a unilateral transfer instruction is that no place of work is specified in the employment contract or that the employment contract contains a (local) transfer clause. If this is not the case, if the employer wants to behave in accordance with the law and relocate the employee, he would have to give notice of change, which is not the subject of this article.
Cheap discretion
If a transfer order is generally possible due to the contractual circumstances, i.e. no notice of change is required, the employer cannot arbitrarily require the employee to work at another location in the company. A transfer instruction must correspond to reasonable discretion. Ultimately, this means that the employer not only has to take his interests into account, but also those of the employee. Both interests must be weighed against each other.
Lawsuit against instructions
If the employer gives a transfer instruction and the employee does not agree with it because he is of the opinion that the instruction does not correspond to reasonable discretion (i.e. his interests were not sufficiently taken into account), he can sue against this transfer instruction. But how should the employee behave until the court has made a decision? Until now, case law has generally taken the view that the employee must comply with instructions that he considers to be unfair until a final decision has been made on the legality of the instruction. According to this legal opinion, if the employee refuses to comply with the instruction he has questioned, he is committing a breach of duty and risks (at least) a warning. It is questionable whether this legal opinion, which is unfortunate for employees, can be maintained in the future. The individual senates of the BAG no longer agree. In a current resolution of the 10th Senate of the BAG dated June 14, 2017 (Az. 10 AZR 330/16), in accordance with Section 45 Para. 3 Sentence 1 ArbGG, it asks the 5th Senate in order to maintain the uniformity of the higher court jurisprudence whether the 5. The Senate would like to continue to maintain that employees must comply with the instructions until the final decision is made. The background is that the 10th Senate wants to take exactly the opposite view. The 10th Senate is therefore of the opinion that an employee does not have to temporarily comply with a transfer instruction from the employer that he considers to be unfair until a legally binding decision has been made.
Conclusion
At present, however, employees are still strongly recommended to comply with instructions that they consider to be unreasonable, as current case law still states that the employee must comply with unreasonable instructions until a legally binding decision is made. Otherwise, he risks a warning and, in the worst case, termination. However, it remains to be seen how the 5th Senate will position itself and whether it will continue to stick to its case law or give the 10th Senate the green light.