In its recent judgment, the Supreme Court of Hungary examined the right of the employer to unilaterally determine the employee’s place of work, within the geographical area stipulated in the labour contract. In our article we examine what aspects shall the employer take into account and what are the employee’s rights in such cases, based on Hungarian case law.
Facts
The claimant worked as a travelling insurance salesperson at the defendant. She carried out her tasks outside the employer’s premises.
According to her labour contract, the place of work varied, within the “Central Hungary” business area of the employer, with the stipulation that the claimant shall occasionally appear in person at the time and place agreed upon, to settle accounts and to undergo training, which actually meant a 10 km drive to the employer’s office once per week.
The claimant’s husband suffered a road accident and became severely restricted in his mobility, the claimant had to take care of him on a daily basis.
In the midst of these circumstances, the employer informed the claimant that due to the claimant’s conflict with her immediate superior, she was transferred to another office of the company. It meant that the clientele remained the same, but the claimant got a new superior and had to appear in another office to settle accounts.
The claimant refused to work at a different office. The employer, after repeated warnings, terminated her employment with immediate effect since she intentionally refused the employer’s instructions to perform the work duties.
The claimant requested the restoration of the employment relationship. She stated in her claim that her employment was terminated wrongfully, since
- i) the employer has failed to take into account her interests under the principle of equitable assessment when unilaterally determining the place of work (i.e. the place of the meetings to settle accounts), and therefore she lawfully refused the employer’s illegal instruction;
- ii) the employer violated the principle of equal treatment when dismissing her, since she was unable to perform the employer’s instruction because of her husband’s disabled status.
The defendant stated that the claimant did not have any protected characteristics and the dismissal was lawful.
First and second instance judgement
The first instance court granted the claim and restored the claimant’s employment relationship.
The court found that employer, when unilaterally determining the place of work, has failed to consider that it caused unreasonable disadvantage to the claimant, as she had to take care of her husband, who needed help on a permanent basis.
The court found a violation of the principle of equal treatment based on the fact that the employee suffered discrimination because of the disability of her close relative (known as “discrimination by association”).
Following the defendant’s appeal, the second-instance court changed the judgment and rejected the claim.
It stated that the employer’s instruction to transfer the claimant to a different office did not affect her daily work, as she had to visit the same clients, and the personal meeting at the office (which was 20-30 minutes from her home) took about 1 hour per week, which did not prevent her from taking care of her husband and did not cause her a disproportionate disadvantage. Therefore, the claimant could not legally refuse the employer’s instruction.
The second instance court found that the employer did not violate the principle of equal treatment. The claimant did not prove that she was disadvantaged because of her husband’s disability, but at the same time, the defendant could successfully prove with witnesses that the claimant was transferred to a different office in order to eliminate the conflict between her and her immediate superior at that time.
The decision of the Supreme Court of Hungary
The Supreme Court found the claimant’s request for review unfounded.
According to the Supreme Court of Hungary, the courts correctly stated that the claimant’s place of work was the “Central Hungary” business area of the defendant. Within this area, the employer could unilaterally change the place of settlement without amending the employment contract. For the claimant, the transfer resulted in 1-2 hours extra travel per month, which did not cause disproportionate disadvantage to her.
The Supreme Court found that the claimant did not prove the violation of equal treatment. The Court emphasized that the employer tried to negotiate with the claimant several times, but in each case it was unsuccessful. The defendant therefore tried to resolve the situation, which failed due to the claimant’s uncooperative behaviour.
Comment
The terms of the employment contract, which is a bilateral agreement, can generally be amended by mutual agreement of the parties. However, in case the place of work is stipulated as variable within a wider geographical area (a city, a region or even the whole country), the employer can unilaterally determine the specific location within the area concerned. The recent judgment made it clear that this right is not unlimited: the employer has to consider the employee’s interests under the principle of equitable assessment and the decision may not cause disproportionate disadvantage to the employee, and most importantly, the employer must also be able to prove it in an eventual labor lawsuit.
(In the article, we analysed Supreme Court Decision published under No. “BH 2023.11.277”)
By Peter Gritta, Attorney-at-law, SmartLegal Schmidt & Partners