BAG: Dismissal with the option of altered conditions of employment needs to be sufficiently precise

In the case of dismissal with the option of altered conditions of employment, the offer to continue the employment relationship needs to clearly define the new terms. That was the verdict of the Bundesarbeitsgericht (BAG), Germany“s Federal Labour Court (Az.: 2 AZR 68/16).

Dismissal with the option of altered conditions of employment entails the existing employment relationship coming to an end. At the same time, the employer offers to continue the employment relationship on the basis of revised terms. We at the law firm GRP Rainer Rechtsanwälte note that these terms must be clearly defined such that the employee is able to quickly and readily decide whether to accept the offer. This was confirmed by the BAG in its ruling of January 26, 2017.

In the case in question, an employee had suffered serious injuries in the course of an accident. Following a work assessment, the employer came to the conclusion that the employee was no longer able to complete the tasks he had hitherto performed, including programming software. The employee subsequently received an offer to continue the employment relationship under different terms in the form of dismissal with the option of altered conditions of employment. Going forward, the employee was to assume responsibility for carrying out predominantly warehouse tasks or courier services as well as earn significantly less. The employee accepted the offer with reservations while lodging a timely legal action.

Despite being rejected by the courts of lower instance, the action was successful before the BAG. The BAG held that the ruling of the Landesarbeitsgericht (Regional Labour Court) was flawed in many respects. The BAG stated that it had assumed that the plaintiff was permanently incapable of performing his work as agreed and laid out in the employment contract. It went on to say, however, that it had only been established that he was no longer able to carry out the programming work, which only represented part of the agreed range of services. The Court ruled that a comparison could not be made between this and being permanently unfit to work, which would make it impossible for the employee to perform any of the work agreed and stipulated in his employment contract.

Furthermore, it was said that the new contractual offer was not sufficiently specific such that the employee would have been able to accept it without further ado. The Court argued that he had not been able to identify with sufficient reliability the work he would have to perform in future. The BAG also noted that the new offer came with a salary that was clearly too low in light of the work he had previously done.

In cases involving dismissal with the option of altered conditions of employment, one should always consider whether the employee is able to perform any of the work he had previously carried out as well as whether the new contractual offer clearly defines the work that is to be performed going forward. Lawyers who are experienced in the field of employment law can advise employers.

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GRP Rainer LLP www.grprainer.com/en/ is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

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