Change Notice: Legality and Response

What is a change notice?

A change notice is given if your employer terminates the previous employment relationship and at the same time offers you the continuation of the employment relationship under changed conditions (e.g. different area of responsibility, lower remuneration). From a legal point of view, the change termination is a real termination. It follows that the employer must comply with the applicable notice periods and - if available - must also consult the works council. Employees who are subject to the Dismissal Protection Act can also bring an action for protection against dismissal (protection against dismissal).
If an employer wishes to terminate an employment relationship, he must first check whether it is not possible for the employee in question to continue to work under changed conditions that can reasonably be expected. For this reason, a termination notice always takes precedence over a termination notice.

In such a case, the employer must first make you a specific change offer and point out that your employment relationship is in question if you do not accept this offer. The boss then has to give you one week to think about your decision.

How do you react in the event of a change cancellation?

If you do not want to accept your employer's offer, you have two options for responding to a termination change:

You can ignore the new contract offer or expressly reject it and at the same time sue the labor court against the termination. In this case, the court only examines whether the termination as such is lawful. Of course, there is always the risk of losing and ultimately losing your job. You should therefore only act in this way if the offer from your company is actually unreasonable for you.

If you do not want to put your job at risk, you should inform your employer that you accept the new contract offer - provided that the change in the contract terms is socially justified. You must make this notification within the notice period or at the latest within three weeks after receipt of the notice of termination. You can then file a complaint with the labor court within this period and have the legality of the notice of change checked without losing your job (under the changed conditions). If the court later finds that the change in your contractual terms was not socially justified, your boss will have to continue to employ you under the old terms.

Under what conditions is a change cancellation lawful?

A termination notice is generally considered to be legally effective by the labor court if the change in working conditions is socially justified and includes an appropriate balance between the interests of both parties. The court does not examine whether the employment relationship has been terminated by the termination, but only whether the employment relationship continues under the changed or still under the old conditions. The prerequisite for this, however, is that you are subject to the protection against dismissal under the Dismissal Protection Act.

Eine Änderungskündigung ist dann sozial ungerechtfertigt, wenn die Kündigung gegen eine Auswahlrichtlinie verstößt, z. B. wenn es um die Beschäftigung in einer anderen Stadt geht und nicht berücksichtigt wurde, dass der Arbeitnehmer schulpflichtige Kinder hat und somit ein Schulwechsel notwendig würde, was bei kinderlosen Mitarbeitern nicht der Fall wäre. Sie ist ebenfalls sozial ungerechtfertigt, wenn der Arbeitnehmer an einem anderen Arbeitsplatz im business weiterbeschäftigt werden könnte und der Betriebs- bzw. Personalrat der Kündigung widersprochen hat, oder wenn die Änderungskündigung durch zumutbare Umschulungs- und Fortbildungsmaßnahmen umgangen werden könnte.

If the labor court comes to the conclusion that the change termination was justified, the lawsuit will be dismissed and you will have to work under the new working conditions. If, on the other hand, the court finds that the termination was unjustified, then your employment relationship continues unchanged under the previous contractual conditions.

If you fail to file the complaint with the labor court within the three-week period for filing a complaint (since receipt of the notice of amendment), the reservation you have declared will expire and the amendment will take effect. Since the justification of a termination change can often be questionable, it is advisable to seek legal advice from a lawyer or the responsible trade union before filing a lawsuit, among other things with regard to legal costs.

Change Notice - Important Judgments

Compliance with the reservation period
The declaration of the reservation only becomes effective at the point in time at which it is received by the employer. If a fax to the employer's HR department does not arrive on the last day of the three-week period until after 6 p.m., the declaration has not been received in time if, according to public opinion, it cannot be expected that the company will still be working at this point in time and that the fax machine will be used is monitored for incoming shipments.
LAG Brandenburg, March 11, 1998 - AZ: Sa 216/97

Change of working hours
If a part-time employee is terminated with the offer instead of working on Monday, Wednesday and Thursday on five days and every Saturday in the future, then the change notice is ineffective because of the inadmissible discrimination of part-time employees, because the full-time employees at least every six weeks on Saturday have free.
BAG, April 24, 1997 - AZ: 2 AZR 352/96

Missed grace period
If an employee accepts the changed contract offer from his employer with the proviso that the dismissal is socially justified and he then fails to submit the complaint to the labor court in good time, he can nevertheless later claim that the dismissal is unjustified because the works council was not properly listened to.

According to § 7 Dismissal Protection Act, a dismissal is deemed to be legally effective from the outset if a complaint has not been filed in good time and the dismissal is not ineffective for other reasons (such as the lack of a works council hearing).

The Federal Labor Court has determined that this provision is also applicable to terminations of changes. It does not emerge from the law that the employee who accepts the offer of change with reservation should be in a worse position than other employees who have been given notice of termination with regard to the assertion of other reasons for ineffectiveness (such as the lack of a works council hearing here).
BAG, 28. S. 1998 - AZ: 2 AZR 61S / 97

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