Die fähigkeitsgerechte Beschäftigung und die Bedeutung des Arbeitsschutzrechts für die Beschäftigungspflicht

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Abstract The key word low performer characterises the discussion on the duty to perform in legal theory and practice, which is linked to the employer`s duty to garantee the possibility of employment. It was emphasized that the employment relationship is a relationship which is carried out gradually and has an organizational character. The right to an employment according to the ability of the emloyee was evolved and motivated using the current development of health and safty law considering § 7 ArbSchG which has attraced little attention so far. The author discusses the right of the employee to an individual adjustment of the employment relationship in case of low performance caused by health problems. By creation of a category of ability adjusted employment he aims at a stronger influence of prevention featuring the configuration of the emloyment relationship which allows to avoid the dismissal of the relationship or structures the decision making in case of termination.