Preparing a Transfer of Business in Advance

Anyone who wants to sell a company or part of a business faces a logistical puzzle. Which employees belong to the area that is changing hands? An automotive supplier transferred a logistics employee to the affected department in a targeted manner in order to prepare the upcoming sale. The employee challenged this in court but was unsuccessful: the Federal Labour Court dismissed his complaint against the denial of leave to appeal (Nichtzulassungsbeschwerde) as inadmissible (BAG, order of 18.05.2026 – 6 AZN 90/26). The decision of the Hesse Higher Labour Court (judgment of 11.09.2025 – 5 SLa 215/25) therefore stands.

According to the headnote of the order, § 106 GewO (Trade Code) does not generally prohibit preliminary transfers into a unit that is to be transferred. An employer may accordingly assign employees before a transfer of a business or part of a business if it stays within its right to give instructions (Direktionsrecht): the transfer must be based on a sound entrepreneurial decision and must adequately take into account the employee's interests in the individual case (§ 106 GewO). The courts do not review whether the underlying organisational concept is expedient. On further individual questions, such as a social selection in the allocation, the order is silent.

For practice this means: you do not have to wait until the sale has been sealed, but can align your organisation early and staff the business areas to be sold within the framework of your right to give instructions. For every transfer, document the factual and operational reasons as well as the weighing of the employee's interests, so that in the event of a dispute you can demonstrate that the measure was appropriate.

As of: 05.11.2026

NIETZER Rechtsanwälte · Attorneys at Law (USA) · Heilbronn · www.unternehmensrecht.com

This article is for general information purposes only and does not replace legal advice in an individual case.