German Employment Law Blog – Employer may limit work on higher level position for a certain period

German Employment Law allows the employer to instruct his employee to temporarily work on a higher level position without being permanently bound to this. This has recently been decided by the Higher Labor Court of Mecklenburg-Vorpommern (decision dated 26.09.2013 – reference 2 Sa 60/13).

The court states it is crucial under German Employment Law that the following prerequisites are met:

  • the employer has to take the decision to instruct according to his best judgment
  • every instruction has to be seen and assessed as a single case
  • the employer has to carefully weight both, his interest in flexibly using his staff and the employee’s interest in being permanently employed on a higher level
  • EU law implies to make sure there is no institutional abuse of exceptional measures (e.g. when such an instruction has been used for a notably long period or with a relative frequency).

Where the employer fails to meet these prerequisites the employee may claim to be permanently employed on a higher level under German law. The case is currently pending at the Federal Labour Court (reference 10 AZN 1110/13).