This post was contributed by Moritz Kunz, Of counsel, Norton Rose Fulbright LLP (Frankfurt a.M.) and Thomas Olbrich, Trainee, Norton Rose Fulbright LLP (Frankfurt a.M.) 

Shiftwork is considered a necessity in many job sectors and industries. The healthcare sector in particular requires a functioning shift system to guarantee optimum and consistent clinical care of patients by the nursing staff. Therefore, for hospitals and other healthcare service providers, the availability of their employees to work on allocated shift rotas is decisive.  

A recent decision by the German Federal Labour Court, delivered in April 2014, stipulates that new principles apply to termination of employment due to a general incapacity to work in a shift system. 

In the case mentioned above, a nurse was unable to work night shifts due to medical treatment, although the employment contract contained an obligation on the employee to work night shifts. The employer’s occupational doctor determined that the unavailability of the nurse for night shifts indicated a general incapacity to work. As a consequence, the employer dismissed the nurse.  

The court decided that the inability of an employee to work night shifts due to medical reasons does not constitute a general incapacity to work, provided that the employee is able to work other shifts. Therefore, it is the employer’s obligation to take the employee’s health deficiency into consideration when allocating shift work. Furthermore, termination of employment due to personal incapacity is not permissible if the employee is merely unable to work a particular shift.

 

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