Germany: Valid Assignment of a Different Position Requires Equivalence

A prerequisite for the valid reassignment to a different position is generally that the newly assigned position must be considered equivalent. If it involves a significant reduction in the scope of duties and responsibilities, this generally constitutes an impermissible reassignment to a position of lesser value.

In Germany, employers have the right to issue instructions under Section 106 of the German Trade Regulation Act (Gewerbeordnung – GewO) to unilaterally determine the nature, location, and time of work performance in accordance with the specific terms of the employment contract. This serves solely to clarify the contractually agreed-upon duties without altering the substance of the contract itself. The employer may therefore also assign new tasks to the employee, provided that these are covered by the existing job description. However, it is generally a requirement that the tasks are of equivalent value and that there is no demotion in terms of responsibility, position, or compensation. Otherwise, the measure exceeds the right to issue instructions and requires a contract amendment, such as through a notice of amendment.

• Before a reassignment, it should be carefully analysed whether the new position is in fact equivalent in terms of responsibility, scope of management, and organizational status. A significant reduction in personnel responsibility or resources generally precludes the reassignment from being permissible under the employer’s right to direct and supervise.
• The employee’s own job and role descriptions may serve as a benchmark in the event of a dispute. If the new position clearly deviates from the requirements defined therein, this argues against its equivalence.
• The employer’s right to issue instructions under Section 106 of the German Trade Regulation Act does not permit a substantive change to the employment contract. If the measure exceeds a simple clarification, it should be examined at an early stage whether a mutually agreed contract amendment or a termination with the option of a new contract is required.