Die Zuordnung von Arbeitnehmern durch Direktionsrecht als Umgehungsmaßnahme im Betriebsübergang

The provision in Sec. 613a German Civil Code (“BGB”), which is heavily influenced by European law, has significant practical relevance and is considered particularly vulnerable to evasion measures. To date, little attention has been paid to the question to what extent the unilateral assignment of employees to business organizations or parts of business organizations by the owner may constitute an inadmissible circumvention of Sec. 613a BGB and interfere with the legal transfer of the affected employment relationships.
The work discusses the principles of law circumvention and evasion in business transfer scenarios and examines the existing opinions on the relevance of assignment of employees in this regard. On this basis, the author develops a purpose-related and case group-oriented approach to assignment measures of the business owner that take place before the transfer of a business while emphasizing the synchronization of the employment relationship and the functional workplace.