Unilateral Staff Transfer

An employer was allowed to unilaterally transfer a number of employees to another location, due to the seriously disrupted working relationship between the employees on the one hand and their managers and the employer on the other.
One of the locations of a healthcare institution, commonly referred to as “clusters” was occupied by persons with an intellectual disability, who, additionally, also often had behavioural problems and psychiatric or psychological problems. The employees' employment contracts stipulated that the employer has the right to transfer employees to another cluster if there were urgent reasons to do so. In April 2024, the healthcare institution applied this stipulation and transferred eleven employees to various other clusters.
This decision followed quite a lot of events.
Internal problems at the cluster were already identified in 2019 and proposals for improvement were made then. In May 2019, a cluster manager had been appointed to realize the improvement proposals. Partly due to a relocation and to the Covid 19 crisis, many of these proposals had not or insufficiently been implemented, however, despite the fact that a coaching agency had carried out a team training process in 2022.
In 2023, the cluster manager fell ill. Replacement was difficult. For quite some time there was no behavioural expert available for the location. A new process, led by an external agency, ended prematurely. In June 2023, the Board of Directors of the healthcare institution decided that the cluster managers would receive support from an external change expert. External support would also be given to the behavioural experts. In November 2023, three new cluster managers were appointed as temporary replacement for the ill cluster manager. The Chairman of the Board of Directors emphasized the need for change. In December 2023, personal discussions between the employees and the cluster managers took place, in which the employees were expected to express their commitment to the necessary changes.
In January 2024, twenty-one employees sent a letter to the Board of Directors in which they expressed their concerns about residents, colleagues and an unsafe atmosphere. A response from the Chairman of the Board of Directors and a discussion of the letter in a team meeting could not alleviate the employees' concerns. In February 2024, twenty of the twenty-nine cluster employees filed a complaint with the healthcare institution's complaints committee. The complaint was directed against the chairman of the Board of Directors and two cluster managers and concerned problems such as: an unsafe working environment, abuse of dominance, bullying, lack of collaboration, transparency and trust, unequal treatment and lack of information. The complaints committee, however, declared the complaint unfounded and recommended to quickly involve external support, so as to take steps for normalisation of the internal relations.
In the context of the preparation for the handling of the complaint by the complaints committee, a meeting was held at the cluster in March 2024, organised by the complainants. Since this meeting led to serious disruption among a number of residents of the cluster and since insufficient action had been taken by four employees, afterwards, the healthcare institution sent these four employees an official warning. This was following an incident notification by a colleague.
After the complaint had been declared unfounded, the Board of Directors had announced that the recommendation to call in external assistance, aimed at normalisation of the relations, had been adopted by the Board, but only if all complainants would sign a declaration that specified the conditions for a professional working attitude. If these conditions would not be followed, the Board of Directors saw no future in starting a new process. The Board of Directors also made it clear that the cluster managers’ way of communication or their positions would not be part of the external process.
When the complainants responded that they were open to external support but that they could not accept the conditions the healthcare institution had attached, the Board of Directors stated that no process with external support would be launched and that the cluster managers would just continue restoring the quality of care and the business operations.
A proposal from the employees to engage an external party to guide the discussions between the institution and the employees, whereby this external party would set the rules, was rejected by the healthcare institution.
Then, the healthcare institution informed eleven employees that they would be transferred to other locations, because there would be no other way to normalise the relationship and to improve a professional attitude and behaviour in the short term. The healthcare institution applied a provision in the employment contract that provided for a transfer. As the urgent reasons it used: the shortcomings in providing the appropriate care to the clients, the lack of trust in the managers and the employees’ refusal to make steps forward in this area
In summary proceedings, the eleven employees asked the Sub-district Court to reverse the transfers, to clear their bad names within the organization, and to withdraw the official warnings. The employees also asked for a copy of the incident notification.
The Sub-district Court considered the location to be an employment condition and not an issue that is covered by an employer's right to issue instructions. The Sub-district Court considered the provision in the employment contract to be a unilateral change clause.
This implied that the employer should have a weighty interest in order to be allowed to rely on the clause. The Sub-district Court was of the opinion that the healthcare institution certainly had a weighty interest in the transfers. In the context of the summary proceedings, the Sub-district Court took the complaints committee’s assessment of the complaints into account. In the opinion of the Sub-district Court, the employer was free to attach additional conditions to the complaints committee’s recommendations. The Sub-district Court pointed out that the complaints committee had described the relationship between the complainants and the Board of Directors as "nearly hostile". In that context, the Sub-district Court considered it appropriate to ask for commitment. The Board of Directors had also reason to ask the employees for this commitment, since six of the twenty complainants, and four of the eleven transferred employees, had failed to respond to an invitation from the Board of Directors to discuss the case in a meeting with the Board of Directors and the cluster managers on 18 March 2024. The employees had refused to sign the declaration without any substantiation and, for that reason, the healthcare institution had been free to decide on the transfer.
Thus, all claims of the employees were rejected.

The fact that the Sub-district Court regarded the provision regarding the work location as an employment condition, and the power to change it as a unilateral change clause, may have to do with the way in which it has been specified in the employment contract. This necessitates a weighty interest to justify the unilateral transfer. In our opinion, the Sub-district Court rightly regarded the importance of the quality of care and the threat, posed to it by the very seriously disrupted working relationships, as a sufficiently weighty interest.