The Constitutional Court dealt with a controversial provision of the Labour Code that allows an employer to transfer an employee to another job even without the employee’s consent if they cannot perform the original job for health reasons. The impetus was the case of a flight attendant who, after being injured during training, lost the ability to perform this job and was transferred to the position of dispatcher against her will. The Supreme Court therefore proposed the annulment of this rule due to a possible conflict with the right to free choice of profession and the prohibition of forced labour.
The Constitutional Court did not grant the proposal, but in fact agreed with the flight attendant. The court emphasized that the transfer to another job is only a temporary solution until the employer and the employee agree on further employment, or until the employment relationship is terminated pursuant to Section 52 (d) of the Labour Code (loss of medical fitness). At the same time, it stated that the refusal of an employee to perform the work to which they were transferred against their will cannot be considered a breach of work duties and cannot be a reason for dismissal or immediate termination of employment.
Therefore, if you are in the position of an employer and find yourself in a similar situation and consider that instead of dismissal under Section 52 (d) of the Labour Code you transfer the employee to another job in accordance with Section 41 (3) of the Labour Code, you must take into account that even if the transfer is formally possible ‘even if the employee does not agree to it‘, the employee does not have to respect the transfer and may initiate the termination of the employment relationship themselves. If the reason for the loss of medical fitness is an accident at work or an occupational disease, they will still be entitled to one-off compensation under Section 271ca of the Labour Code (until the end of May 2025, it was a twelve-month severance pay).
In the light of the Constitutional Court’s ruling (Pl. ÚS 31/24), it seems that if you do not agree with an employee in a similar situation on a change in the employment contract, it will be better to proceed directly to the notice than to live in uncertainty whether the employee will come to work or not. The Constitutional Court did not repeal the provision in question, but its practical application remains at least questionable.
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If you have any questions about this topic, please reach out to your contact person in our office or the authors of this article – Dana Provázková and Michal Zahradník.
This document is a general communication and should not be regarded as legal advice on any specific matter.
