Right of nurses not to be assigned to night shifts

If a nurse is no longer capable of working night shifts in a hospital for health reasons, this does not mean that she is unfit for work due to sickness. She has an entitlement to employment without being assigned to night shifts.

The Federal Labour Court was called on to decide to what extent a shift worker is unfit for work through sickness because she was no longer capable of working night shifts for health reasons. The claimant was a nurse working shifts. Under her contract of employment, she was obliged to work on Sundays, on public holidays, at nights and in shifts (including alternating shifts) within the scope of justified operational needs. The claimant was unable to work the night shift from 21.45 hours to 06.15 hours for health reasons. This was the result of her need to take medicine that caused her to fall asleep. Following an examination by a company doctor, the claimant was sent home, because she was allegedly unfit for work due to sickness as a result of her unsuitability for night work. The claimant subsequently explicitly stated her willingness to work with the exception of night work; the defendant rejected this.

The Labour Court Potsdam upheld the legal action for employment and payment of the remuneration for the period of nonemployment. The appeal by the defendant to the State Labour Court Berlin-Brandenburg as well as the appeal to the Federal Labour Court were unsuccessful.

No incapacity for work

The Federal Labour Court established that the claimant was neither unfit for work as a result of sickness nor had it become impossible for her to work. The claimant was still able to perform all duties of a nurse owed under her contract. She was merely unable to work night shifts as a result of the medication she was required to take. The defendant should therefore have taken account of the health deficits when planning shifts.

Right of employer to issue instructions

The defendant’s right to issue instructions was likewise not restricted by the provisions of a works agreement. In particular, the authoritative works agreement provided for equal planning, including in terms of the shift sequence of the staff and taking account of the individual wishes of the employees. Given the fact that she had correctly declared her willingnessto work, the claimant was entitled to demand her remuneration from the defendant, as the defendant was in default on acceptance following rejection of her offer to work.

Section 106 Sentence 1 and 3 of the Industrial Code (GewO) does grant the employer discretionary powers when organizing duty rosters. However, this does not entitle the employer to unilateral determination of duty rosters without taking account of the interests of the employees. Because the employer’s assignment of work only constitutes reasonably exercised discretion if the fundamental circumstances of the case have been weighed up and appropriate account taken of the reciprocal interests.

The mere interest of an employer in equal shift assignment cannot, as a fundamental rule, constitute a predominating operational necessity of the employer over a work limitation of an employee that is to be taken into consideration.

Summary

The effects of the decision of the Federal Labour Court can be extremely problematic in practice. This is because the health-related non-availability of an employee for night shifts results in an increased number of night shifts for those employees who are not in possession of any such partial medical certificate of incapacity for work. A decisive question will therefore be at what point the interests of the employer in practising rotating shift assignment predominate, if several employees are not available as a result of unsuitability for night shifts.