Conflict at work place – who gets transferred?

I repeatedly represent clients (who are accused of sexual harassment or other forms of bullying/discrimination in their employment relationship) or clients who are defending themselves against this harassment. The question of how employers respond to allegations of bullying or discrimination is always fascinating. Sometimes they transfer the allegedly bullying employee, which is understandable. But it also happens that they transfer the employee who complains about the harassment, which is far less understandable, especially if the facts of the case have not been sufficiently clarified or could not be clarified. Such a transfer of the complaining employee effectively means that only an employee who can prove the harassment/bullying will complain. However, this cannot be known in advance, as it is unclear whether the witnesses, if any, will tell the truth, whether they will give contradictory statements, or whom the court will believe. The law also expressly prohibits disciplining a person who complains about discrimination.

The Cologne Labor Court has decided the following case on this topic:

After a staff meeting, an employee claimed that a colleague had touched her shoulder and called her „sweetheart“ (in German). Later, the employee allegedly deliberately slapped her on the buttocks as he walked by. The employer attempted to clarify the situation but was unsuccessful. Nevertheless, the employer issued a warning letter to the employee and transferred him. The employee filed a lawsuit challenging the transfer and the warning letter.

In its decision of February 25, 2025 (judgment of February 25, 2025, case number 7 SLa 456/24), the Cologne Labor Court denied the validity of the warning issued against the plaintiff for alleged sexual harassment. Due to insufficient evidence — in particular, contradictory witness statements — the court could not confirm the allegation that the plaintiff had deliberately touched Ms. G’s buttocks on March 14, 2023, to be proven. Therefore, the employer lacks the necessary factual basis to uphold the warning. Consequently, the warning is ineffective. This was a success for the employee.

However, with regard to the plaintiff’s transfer from location M to location A, the court confirmed the legality of this measure. This transfer was carried out within the scope of the employer’s right of direction pursuant to Section 106 of the German Trade Code (GewO) and was covered by the involvement of the relevant staff council pursuant to Section 77 of the Works Constitution Act (BetrVG). The transfer serves legitimate operational purposes, in particular conflict resolution and the protection of the workforce, and is therefore legally permissible.

In a recent case involving my client, the employer, after a complaint about, among other things, sexual harassment, without even having investigated the case, unilaterally suspended the complaining employee (a severely disabled employee with exceptional walking difficulties) and then transferred her to a distant location, leaving her supervisor in his position.

We’ll see how the court will rule on this transfer of my client.