Workplace suitable for suffering

What is a suffering-friendly workplace?

A job is considered to be suitable for the suffering if an employee can perform it despite his or her health restrictions/disabilities, i.e. can complete all the tasks and challenges set according to his or her abilities.

If necessary, the workplace must be redesigned and precautions must be taken – for example, by providing suitable technical equipment. In this way, employees with health problems are to be protected from losing their jobs. Whether the workplace is suitable for suffering or can be made suitable for suffering by redesigning it is a case-by-case question in which the circumstances of the individual case and the reasonableness for the employer must be taken into account.

Thus, if the employee is no longer able to perform a certain activity for reasons inherent in his or her person, the job suitable for the employee’s condition ensures that the employment relationship is maintained as a milder means of termination for personal reasons.

The employer’s right to terminate the employment contract for personal reasons is therefore restricted as a consequence.

Who is entitled to a workplace suitable for suffering?

In principle, the employer assigns his workplace to the employee within the scope of his right to issue instructions. He thus determines the activity and the workplace required for it.

On the other hand, in addition to duties of care, the employer also has duties to the employee under Section 241 II of the German Civil Code (Bürgerliches Gesetzbuch – BGB), from which the employee can assert a claim for the maintenance of a workplace suitable for the employee’s condition. Employees with a severe disability in particular are entitled to a workplace that is suitable for their condition. However, according to recent case law, this entitlement also applies to employees who are not severely disabled or of equal status, but who have a health impairment that makes it impossible for them to continue to perform the activity previously assigned under the employment contract.

However, the right to employment suitable for the suffering only exists if the work or the field of activity is included in the employment contract. Furthermore, the employer does not have to create or reestablish such a workplace. A workplace suitable for the suffering must therefore already exist in the business or company and be free or be able to be freed up by reasonable rotation of employees.

What specifically must the employee do to enforce the claim?

The employee must first talk to the employer – in other words, he or she must demand that the employer transfer the employee to a job that is suitable for the employee’s condition. In doing so, he or she must also specifically state how he or she envisions a workplace that is suitable for the suffering. The employer must regularly comply with this request if a corresponding workplace exists and the reorganization is reasonable and legally possible.

The interview can be conducted as part of a so-called company (re)integration management. Company (re)integration management is part of the measures to create a workplace that is suitable for the suffering. Here, the employee concerned, the employer, a possible company doctor, the integration specialist service and the works council and, in the case of severely disabled employees, the representative body for severely disabled employees should come together at a table to clarify how the employee concerned can be deployed in the company in the future despite health restrictions.

If no compromise can be found with the employer through talks, the employee can also enforce his claim by taking legal action.

Does the entitlement to a workplace suitable for the suffering also imply an entitlement to a home office?

In general, an employee’s right to a home office workplace is not regulated. This also does not generally follow from the right to a workplace suitable for the suffering. The home office may even conflict with the requirement of a workplace suitable for the suffering, for example because the technical equipment does not meet the requirements.

So here, too, a case-by-case assessment must be made.

What is the benefit to the employer of an employee’s workplace that is suitable for suffering?

Workplace design can preventively maintain or increase the employee’s performance. Continued payment of wages due to illness is associated with high costs for the employer, which can (in part) be avoided. Sometimes these costs exceed the expenses for a job suitable for the employee’s condition, such as retraining. The employer can receive advice for suitable measures as well as corresponding subsidies.

In addition, the employee can continue to be employed in the company in times of shortage of skilled workers at the workplace suitable for the suffering. Indirectly, the employer is relieved by stable social security contributions.

Overview

• Satisfactory performance of the employee
• Reduction of costs for continued payment of wages, social security contributions
• Retention of skilled workers in the company
• Consulting and subsidies

Summary

A workplace that is suitable for the suffering is an important component in maintaining the performance of the employee and thus of the company. This is achieved by redesigning the workplace or assigning the employee a different job. The employee is entitled to this. In this case, the employee is assigned a different job. Not only the employee, but also the worker benefits from the appropriate design of the workplace.