In its ruling of December 13.12.2023, 4 (case no. 322 AZR 22/XNUMX), the Federal Labor Court ruled on the limited protection of legitimate expectations in the case of corrective downgrading to a lower pay group. According to this ruling, a reduction in salary made by the employer on the basis of an application for a higher pay group according to Section 29b para. 1 TVÜ-VKA assignment of the activity to a new activity characteristic of the Appendix 1 – Remuneration Schedule (VKA) to TVöD/VKA be corrected according to the principles of corrective reclassification.
1. FACTS
The parties are arguing about the correct classification of the plaintiff. Since 2016, the plaintiff has been employed as an occupational therapist in neurology and acute geriatric clinics operated by the defendant. Initially, this was on the basis of a fixed-term employment contract from January 2016. Later, the plaintiff received a permanent employment contract, in which she was placed in the higher pay group upon request. EG 9b TVöD/VKA The following year, the defendant made a corrective reclassification to the pay group 9a TVöD/VKA which the plaintiff did not agree with. The plaintiff was of the opinion that she was still entitled to a salary 9b TVöD/VKA The defendant is not permitted to make a corrective reclassification for reasons of protection of legitimate expectations.
The Dresden Labor Court dismissed the declaratory action. On appeal by the plaintiff, the Saxony State Labor Court upheld the action. The appeal before the Federal Labor Court resulted in the case being referred back to the LAG.
2. DECISION
In the opinion of the Federal Labour Court, the corrective reclassification carried out by the defendant did not violate good faith, contrary to the opinion of the Court of Appeal (Civil Code § 242). The decision taken in response to a request by the plaintiff Section 29b para. 1 TVÜ-VKA The higher classification at the beginning of 2018 based on the German Civil Code does not justify any increased trust beyond a “limited protection of legitimate expectations”, since the Section 29b para. 1 TVÜ-VKA supported allocation to the higher pay group 9b TVöD/VKA is not based on a review and subsequent correction of a previous classification which is now considered to be legally incorrect.
According to the BAG, a first-time classification decision based on a new activity characteristic of the Appendix 1 – Remuneration Schedule (VKA) to TVöD/VKA which does not provide an increased level of accuracy that would preclude a corrective reclassification according to the standards presented.
Contrary to the opinion of the LAG, the plaintiff could not assume that the defendant had already previously assigned her activity to the Salary group 8 TVöD/VKA checked against the new pay scale and only after the higher grouping in the Salary group 9b TVöD/VKA want to correct an assessment that was only subsequently recognized as incorrect.
Since the Federal Labour Court cannot, on the basis of the findings made so far, make a final assessment as to whether the plaintiff will continue to receive remuneration according to pay group 9b Level 3 TVöD/VKA If the plaintiff cannot claim compensation, the legal error leads to the annulment of the appeal decision and the referral of the case back to the Regional Labour Court.
3. CONCLUSION
With this decision, the Federal Labor Court is consistently continuing its previous case law. It confirms the possibility of a corrective downgrading and continues to emphasize that this is only excluded in exceptional cases. After a correction of their classification has been made once, employees should be able to trust that the new determination will remain the same. However, this can only apply in cases in which a classification was corrected because the employer subsequently recognized errors in the classification. According to these standards, the correction of a higher classification that was made at the request of an employee is not a repeated downgrading, but a first-time downgrading.
