The Supreme Court has turned to the Constitutional Court with a proposal to repeal part of the Labour Code. Specifically, the provision of Section 41(3) of Act No. 262/2006 Coll., the Labour Code (the “Labour Code”), which allows employers to transfer employees to another job without their consent. According to the Supreme Court, this provision is contrary to the constitutional order.

The provision in question applies to situations, where the employee is unable to continue in his or her original position for health reasons, for example. Current legislation allows the employer to transfer the employee to another job, even without the employee’s consent.

The review of the provision in question was prompted by the case of an employee - a flight attendant - who was unable to continue in her original position after a work-related injury. The employer transferred her to a position as a dispatcher, which the employee refused and did not take the new position. Subsequently, the employee was dismissed for breach of work discipline. Both the courts of first and second instance, before which the employee sought a declaration that the termination was invalid, ruled in her favour. However, the employer brought an appeal against the judgment of the Court of Appeal to the Supreme Court, which stayed the proceedings and turned to the Constitutional Court to repeal the disputed part of the Labour Code.

In its proposal, the Supreme Court stressed that the autonomy of the employee’s will must be respected when changing the type of work and also pointed out the prohibition of forced labour. The Supreme Court further argued that a change in job classification should be the result of an agreement between both parties, and unilateral transfer should only be possible in exceptional cases of public interest, such as during emergencies or natural disasters.

If this part of the Labour Code is repealed, it will mean a significant change for both employees and employers, who will have to reach mutual agreement, in this case the consent of the employee, when changing the job placement (with the exceptions mentioned above). If the employee refuses to change the type of work, the employer will have to find another job for the employee that matches the agreed type of work as well as the employee’s qualifications, abilities and state of health. As a result of this obligation, situations may appear where the employer may be able to terminate the employment relationship with the employee because he or she does not have a job suitable for his or her health condition, for example.