Reassignment: what to do if you disagree?

Chapters of the article

• What is a type of work and where is it defined?
• Change of job
• When can a job transfer occur without consent?
  
• When must your employer transfer you to another job?
• When can they (but don’t have to) transfer you to another job?
• What about transferring to another job for organisational reasons?
  
• What about pay in a new job?
  

Ms. Hana contacted the office of the Accessible Advocate. Her employment contract specified the position of “spokesperson and public relations”. Her employer informed her that as part of this role, she would represent the company at various events, trade shows and conferences, where she would stand at a booth or drive the company car to purchase refreshments and arrange them on tables at conferences to ensure they ran smoothly. Ms. Hannah’s idea of work consisted of copywriting and meeting with journalists, and therefore Hannah did not agree with the proposed change. From her point of view, it was more of a job for a hostess than for a qualified employee with a university degree and many years of experience. She asked us what the employer was allowed to do in this respect despite her opposition.

What is the type of work and where is it specified?

When we enter into an employment contract with an employer, the type of work we will do for the employer is set out in the contract. This is not a formal job description that we do not need to pay attention to. This type of work constitutes the basic definition for the exercise of the employer’s discretionary right to assign work and direct its performance.

The type of work set out in the contract is often supplemented by a separate document called, for example, a ‘job description’ or a ‘job description’. In this case, it is already a unilateral act of the employer specifying the tasks of the employee. The content of the job description is therefore determined unilaterally by the employer, but it must be exclusively within the scope of the agreed type of work.

It must be said that the specific content of the job description may change without the employee’s consent, but it must remain within the agreed type of work. You as an employee may refuse to carry out activities that go beyond the agreed type of work in the employment contract.

Please note that an employer may stipulate more than one type of work in an employment contract and this is not in conflict with the Labour Code. Especially in small companies, it may be worthwhile not to look for two part-time employees for certain positions, but to combine, for example, the positions of assistant and accountant in one person. However, the two positions should be properly defined in the contract and ideally separately. The employer should not look for some general wording under which to hide any kind of work.

A job position can be defined directly in the contract either by its title, under which we typically think of a certain range of activities, as in the case of the accountant mentioned above. Alternatively, the individual activities may be described more or less generally (e.g. payroll management, recording and custody of tax documents, invoicing, etc.).

In Hannah’s case, the employer should be sure that the change of work corresponds to the agreed type of work. Public relations are defined in a slightly different way for each company, but representation of the company at trade fairs can be considered part of it. In the case of smaller companies that do not have a larger service apparatus, ordering refreshments for conferences from a catering company would probably fall under it. However, buying and delivering refreshments in-house and creating sandwiches for guests is no longer typically associated with this position. We therefore helped Hanna to write an argumentation for her employer in which she opposed this type of task.

Change of job position

A change in job title must be accompanied by a change in the employment contract if:

• the employer reassigns the employee to a completely different type of work – (e.g. he wants to make his personal assistant a back office clerk),
• the employer wants to transfer the employee to a different workplace (e.g. transfer the assistant to another office in the region). In this case, therefore, the Labour Code does not explicitly refer to a transfer, but to a reassignment.

In both cases, the employee must agree to the transfer or change of location, otherwise the employer may not implement the changes.

When can I be transferred to another job without consent?

A transfer to another job is an act of the employer as defined by the Labour Code. Under certain conditions, the employer may use it to change the type of work to be performed by the employee under the employment contract.

However, the employer must have the legal conditions for such a move. It is not possible to reassign an employee to another job for other reasons. There are situations where the employer must transfer the employee to another job and situations where it is at the employer’s discretion whether to transfer the employee.

When does your employer have to transfer you to another job?

In this case, health reasons are key. If your medical condition means you are no longer fit to do your current job, or if you are unable to do your job because of an accident at work, occupational disease or threat of illness, the employer must act (similarly, an employee must be transferred from night work if they are not fit to do it).

Example: Mr Charles worked as a miner in a mine and suffered a head and spinal injury at work. As a result, he was prohibited from working as a miner in the future. His employer subsequently transferred Mr Karl from his position as a miner to work as a pressure gauge.

The medical reclassification was conditional on a medical report from an occupational health provider.

The law also defines certain types of work that cannot be performed by pregnant women, women who are breastfeeding and women up to the ninth month after childbirth. Also, if an occupational physician pronounces that the work poses a risk to pregnancy or maternity, the employee must be reassigned to another job. The employee can also request reassignment herself if she does not want to work at night. And she must be granted.

The employer must also transfer the employee to another position if the public health authority so decides in the interests of protecting the health of other individuals from infectious disease.

Thus, in these cases, the employee can be transferred to another job without his consent or despite his refusal. In such a situation, the employee is obliged to comply with the employer’s order. However, the employer must take into account that the work is suitable for the employee’s health and abilities. And it should also take into account the employee’s qualifications, if possible.

When can they (but don’t have to) transfer you to another job?

An employer can transfer an employee to another job within the notice period if the notice was given because the employee does not meet the legal requirements for the job, has a long history of unsatisfactory performance, or has seriously breached his or her job duties.

An employee may also be reassigned because criminal proceedings have been initiated against him on suspicion of deliberate criminal activity committed at work or because he has caused damage to the employer. However, an employee may be reassigned in this way only until the criminal proceedings have been finally concluded.

An employer may also reassign an employee if the employee has temporarily lost the statutory qualifications to perform the job. This can be done for a maximum of 30 working days per calendar year.

What about transfer to another job for organisational reasons?

If your employer does not have a job for you at the moment, they cannot just cancel your job and reassign you to another position. In that case, it would be an obstacle to work on the part of the employer. You should find a solution together and then conclude a new employment contract or amend the original one. However, this will not be possible without your consent as an employee.

What about pay in the new job?

The employer pays the employee a salary according to the new job. This means that if the position typically comes with a higher salary, the employee is entitled to it. However, if the assigned job pays a lower wage, the employee is entitled to a supplemental wage up to his or her average wage before the transfer. However, this rule shall not apply without exception.

It does not apply in situations where the employer has transferred the employee during the notice period for the reasons set out above, or where the conditions for performing the work have ceased to exist. If criminal proceedings are initiated, the employee shall be entitled to a supplement to his original salary, provided that he has not been convicted.