In its decision of October 20.10.2021, 7 (Az: 34 ABR 20/XNUMX), the Federal Labor Court decided that the termination of alternating telework (transfer back to the company) is generally a transfer within the meaning of Section 95 Paragraph 3 BetrVG represents. 

1. THE CASE

Those involved are arguing about a replacement of consent Section 99 Paragraph 4 BetrVG. The company had revoked an employee's telework permit. The employee was ordered back to the company. The responsible works council saw this as a transfer requiring approval and objected to the measure. He complained about a violation of the terms of the employment contract and viewed the employee as disadvantaged. The company then applied to the labor court for a replacement of consent. The labor court granted approval and the state labor court rejected the works council's complaint.

2. DECISION

The works council's legal complaint before the Federal Labor Court was also unsuccessful. The reason for refusal of consent Section 99 Paragraph 2 No. 1 BetrVG (Violation of law etc.) is not relevant. In this respect, it is not the works council's job to control the content of the employment contract. For a reason for objection Section 99 Paragraph 1 No. 4 BetrVG The works council could also not invoke discrimination against the affected employee. The disadvantage here results from the implementation of the business decision. It is therefore justified for operational reasons. 

3. CONCLUSION

The decision of the Federal Labor Court is to be welcomed. The court thus once again clearly expresses that the right of co-determination § 99 BetrVG is precisely not an instrument for comprehensive control of the content of an employment contract. In addition, it is fortunately made clear that disadvantages resulting from the implementation of a business decision are not disadvantages in the sense Section 99 Paragraph 2 No. 4 BetrVG are.