Transfer

What is a transfer?

A transfer in the sense of labor law occurs when the employer significantly changes an employee's working conditions. This applies in particular to the place of work, working hours, or the work performed. However, the mere assignment of a new task within the same area of responsibility is not typically considered a transfer, but rather a normal instruction within the scope of the employer's right to give instructions.

The Works Constitution Act defines the term in Section 95 (3) BetrVG: According to this, a transfer is the assignment of a different area of work for a period of more than one month or the assignment of a different area of work associated with a significant change in circumstances area of work. This definition is decisive for the question of when works council must be involved – but it also has an impact on the general assessment under labor law.

In practice, the change is often ordered unilaterally by the employer and based on them right to give instructions. The distinction is important for employees: the more serious the change, the stricter the requirements that the employer must meet. A temporary transfer to another desk in the same building is fundamentally than a permanent transfer to a location in another city. Ultimately, what counts is not what the employer calls the measure internally, but how significantly it changes the actual working situation.

Legal basis: Section 106 GewO and its limits

The right to issue instructions (§ 106 GewO) generally allows the employer to determine the content, location, and time of work performance at their reasonable discretion, provided that these working conditions are not specified in the employment contract, works agreements, or collective agreements. This sounds far-reaching, but in practice it is not.

The key point lies in the word "insofar as": as soon as the employment contract specifies the place of work, for example, "place of work Hamburg," the employer cannot unilaterally transfer the employee to Munich. The right to issue instructions ends where the contract contains a clear provision. The same applies to collective agreements and works agreements that stipulate certain conditions.

In addition, every instruction—even if it is formally covered by the right to give instructions—must be exercise reasonable discretion. This means: no arbitrariness, no harassment, no unilateral dominance. A transfer that serves solely to put pressure on the employee or to induce them to resign exceeds the limits of the right to give instructions and is unlawful. Anyone who has family or health obligations cannot be detached from these circumstances.

Role of the employment contract and transfer clauses

The employment contract is often the linchpin in transfer cases. If the contract contains a so-called transfer clause, such as that sentence "The employee agrees to be assigned to other locations of the company ," this significantly expands the employer's scope of action. Nevertheless, the requirement of reasonable discretion remains.

If, on the other hand, the contract specifies a very specific place of work or a clearly defined activity (e.g., "Place of work: Hamburg"), it becomes much more difficult for the employer to implement unilateral changes . In this case, a permanent transfer to another location requires a termination for change. The employee can accept this with reservation and have it reviewed by a court , which gives them a significantly stronger legal position.

Transfer clauses provide leeway, but they are not a blank check. The measure must be appropriate for the qualification, the job must remain fundamentally equivalent, and even with a clause, reasonable discretion applies. Very general formulations such as "transferable nationwide at any time" are often open to challenge. Transfer clauses in form contracts must be very general formulations such as "transferable nationwide at any time" are often open to challenge. Transfer clauses in standard employment contracts must comply with the General Terms and Conditions Act (AGB) in accordance with Sections 305 ff. of the German Civil Code (BGB); a clause that grants the employer unlimited power may be invalid as unreasonably disadvantageous.

Works council and co-determination (Section 99 BetrVG)

If there is a works council, the transfer is regularly an individual personnel measure subject to co-determination (Section 99 BetrVG). This does not typically apply to executive employees. The employer must inform the works council in advance and obtain his consent. Without consent, the transfer is not effective in many cases.

If the works council refuses to give its consent for justified reasons, such as a violation of the law or an unreasonable burden – , the employer cannot simply enforce the transfer . In this case, the employer must apply to the labor court to have the consent replaced. During this procedure, the transfer is generally not enforceable. Only In urgent cases the employer can provisionally implement the measure – but must also immediately initiate the consent replacement procedure.

This is an important lever for affected employees: if the works council has been bypassed, the transfer may be invalid and you would not have to follow the instruction. But be careful: a hasty refusal can be risky. If it turns out later that the measure was lawful after all, you may face a warning or dismissal. The pragmatic approach is therefore to work under reserve in case of doubt and have the matter reviewed at the same time. If the transfer is at your own request, the right of co-determination often does not apply.

Reasonable discretion: the central touchstone

The requirement of reasonable discretion permeates the entire right of direction. Even if the right to issue instructions or a contractual clause applies in principle, the transfer is only effective if it has been fairly considered. The employer must weigh up its operational reasons, such as restructuring, department closure, or staffing requirements at another location, against the personal interests of the employee. The greater the impact of the transfer on the employee's life, the more compelling the reasons must be.

When weighing up the reasons, courts typically take into account: family situation (children, childcare, care), the partner's professional ties, home ownership and the consequences of moving, distance and daily commute time, health restrictions, and social integration into the team and work environment. Transfers for reasons of pure convenience or as a form of harassment are not permitted.

Courts review the exercise of discretion in its entirety. If the employer has not taken the interests of the employee into account at all or if the result of the consideration is obviously inappropriate, the court may declare the transfer order invalid. The employer bears the burden of proof and demonstration of operational necessity.

Reasonableness as a practical benchmark

A transfer must not lead to an unreasonable deterioration. The standard of reasonableness is closely linked to the requirement of reasonable discretion and concerns several dimensions:

• Salary: As a rule, remuneration may not be reduced. If remuneration is to be reduced, a separate contractual basis or a change notice is required.
• Activity and status: New tasks must be appropriate to the employee's qualifications and previous position. Demotions or inferior activities are only permissible in very exceptional cases and are often a warning sign of ineffectiveness.
• Working hours: Changes to working hours and the location of working hours may be unreasonable if they effectively disrupt the employee's life – for example, a shift change that conflicts with childcare responsibilities.
• Social structure: The team, the environment, and the employee's integration into the company can also play a role in the assessment.

In such situations, employees can refuse the instruction without fear of dismissal, but should always seek legal advice to be on the safe side.

When can you refuse a transfer?

A direct refusal can have consequences under labor law. Refusal is therefore more of a last resort and should be based on clear legal grounds. Typical reasons for refusal are:

• Breach of contract: Fixed place of work or clearly defined job in the employment contract , no effective transfer clause, or the new job does not match the employee's qualifications.
• Works council not involved: The works council was not involved, or it objected and the employer implemented the measure anyway.
• Unreasonableness due to personal circumstances: Care or nursing becomes practically impossible, the distance and commuting time are not realistically feasible, or health reasons speak against it.
• Incorrect weighing of interests: The employer weighs up operationally interests one-sidedly – no fair weighing up in accordance with Section 106 of the German Trade Regulation Act (GewO) in conjunction with Section 315 of the German Civil Code (BGB).

Important: Anyone who simply refuses a lawful transfer risks a warning and, in the event of a repeat offense, termination. Document your reasons in writing and in concrete terms, involve the works council, and, if in doubt, work under reserve at first to avoid the risk of a warning.

How to respond wisely to a transfer

A transfer is rarely the time for snap decisions. A phased approach is usually strategically sensitive :

• Put it in writing: Verbal instructions can also be effective. However, ask for written confirmation and document your response.
• Check the reasons and framework: Are the reasons for the measure comprehensible? Are they in line with the employment contract , collective agreement, or works agreement?
• Inform the works council: If there is a works council , involve it at an early stage.
• Work with reservations: If the legal situation is unclear, take it up new job, but state clearly in writing that you do not recognize the instruction as lawful and reserve the right to take all legal steps. This will prevent you from being dismissed for refusing to work without waiving your legal position.
• Hold discussions and suggest alternatives: Sometimes hardships can be reduced by making adjustments. Start times, partial mobility, hybrid solutions, or transition periods.

Seek legal advice as soon as possible—ideally from a lawyer specializing in labor law. The sooner you act, the better your chances and options will be.

When can a transfer also have advantages?

Not every transfer is negative. It can also open up new tasks and development opportunities , increase visibility within the company, or enable a change of location that is even better suited to your private life. If you approach the situation with an open mind, you may be able to benefit from the change.

Nevertheless, if you consider the measure to be unlawful, you should proceed in a structured manner. Formulate your objection, document your reasons, and have the situation reviewed— instead of reacting impulsively. Even if a transfer is fundamentally welcome, it is worth taking a look at your employment contract to ensure that the framework conditions are correct.

If it can't be done without going to court

If an objection is unsuccessful, the courts can clarify whether the transfer is effective. There are two options available:

• Declaratory action: For a legal assessment of whether the transfer order is valid or invalid.
• Urgent proceedings (preliminary injunction): In urgent cases, when Significant disadvantages are imminent without court intervention.

During the proceedings, you will often have to continue working at the new location – typically under reservation. At the end of the proceedings, the labor court will primarily assess the employment contract and the reasonableness of the measure. Early legal advice is particularly important here, as wording and deadlines can determine the outcome.

Contract clauses and "cold dismissal": Recognize warning signs early

Transfer clauses provide leeway, but they must be formulated fairly: only equivalent tasks may be assigned, demotions are often invalid, and reasonable discretion always applies. Always have conspicuously broad clauses reviewed by a lawyer.

Some transfers are actually intended to encourage employees to leave, for example by assigning unattractive tasks or remote locations without a valid reason. Search "cold Terminations" are often contestable, especially if functions are withdrawn or works council rights are disregarded. The court may declare the instruction invalid; if the employee actually resigns, they may be entitled to claim damages under certain circumstances.

The safe approach remains: review the contract, involve the works council, assess reasonableness, and in case of doubt, act with reservation at first. This will protect you from secondary consequences under labor law while preserving your rights.