According to the decision of the LAG Munich of August 26, 2021 (3 SaGa 13/21), employers may unilaterally order the return from the „home office”. Even before the COVID-19 pandemic, there were numerous discussions about whether there should be a right to fixed days of „home office“ or mobile working. By now, a large number of employees is supposedly predominantly working from home. These are largely temporary arrangements that were primarily made for reasons related to COVID-19 and served to protect against infection. Currently, the question arises as to whether employees can be brought back to the office or to the company „just like that“. But at the same time, employees are asking themselves just how long they are actually still allowed (or even obliged) to work from home. Fortunately, the LAG Munich recently made a very clear decision regarding this question.
Definition – What is meant by „home office“?
For clarification purposes, it is to be pointed out that the term „home office“ is colloquial and not yet legally established. In common parlance, there is usually no distinction between „teleworking“ (Telearbeit) and „mobile working“ (mobiles Arbeiten).
„Teleworking“ is a legally defined term in this context. According to Section 2 (7) sentence 1 of the German Workplace Ordinance (ArbStättV), tele workstations are DSE (display screen equipment) workstations installed permanently by the employer in the workers’ private sphere, for which the employer has stipulated weekly working hours – agreed with the worker – and the duration of the installation.
Mobile working (or mobile teleworking or mobile office) is not legally defined. The work is characterized by the fact that employees do their work from any location outside the company premises (but within Germany) – it may be their favorite café around the corner, for example – via a connection to the company using information and communications technology.
In its decision, the LAG Munich ruled on the unilaterally ordered return from the „home office“, whereby mobile working is likely to be meant here. In the following, the term „home office“ refers to mobile working.
No (legal) entitlement to „home office“ – not even during COVID-19 pandemic
In principle, there is no legal entitlement to mobile working in a home office. Not even during the COVID-19 pandemic. During the COVID-19 pandemic, employers were required by the SARS-CoV-2-Arbeitsschutzverordnung (Corona-ArbSchV) or, at times, by the German Infection Protection Act, to allow employees to work in a location-independent manner (including at the kitchen table) whenever possible. Ultimately, an entitlement requires a respective agreement between employer and employee, which can be based on a collective bargaining agreement, works agreement or a supplementary agreement in the employment contract.
Insofar as there is no entitlement to mobile working, the employer may, within the scope of its right to issue instructions, at any time order that the work be (again) performed at a specific location – i.e. regularly the place of business.
Facts of the LAG decision
These were preliminary injunction proceedings. The applicant was the employee. The latter was employed full-time as a graphic designer. Since December 2020, the employees otherwise working in the office performed their work at their respective places of residence on the basis of a permit from the managing director. Only the employees of the administration office were working on site in the Munich office to a limited extent. On February 24, 2021, the employer instructed the employee to again perform his work as a graphic designer while being present in the Munich office. The employee objected to this instruction with the aim of continuing to be able to perform his work from the home office – unsuccessfully.
The Labor Court dismissed the expedited motion
The Munich Labor Court dismissed the employee’s application for a preliminary injunction. An entitlement to work from the home office does neither result from an employment contract nor from Section 2 (4) Corona-ArbSchV. According to Section 106 sentence 1 German Industrial Code (GewO) the employer is also not obligated to exercise his right of direction within the scope of equitable discretion in the manner desired by the employee. The specification of the duty to work with regard to the place of work is incumbent upon the employer. The general risk of contracting COVID-19 on the way to work and the general risk of infection at the place of work or during the lunch break in principle does not preclude an obligation to appear at the office and thus not limit the employer’s right to issue instructions.
The Regional Labor Court confirmed the decision
The LAG Munich confirmed this decision. It stated that the employer was entitled to (re)determine the place of work by means of instructions while exercising equitable discretion, i.e. by weighing the interests.
The employee’s place of work was not specified as the employee’s home – neither in the employment contract nor by virtue of a subsequent express or tacit agreement between the parties. A right to perform work from home did not exist in February 2021 according to Section 2 (4) Corona-ArbSchVO. It does not correspond with the intention of the legislator to convey a subjective right to home office with this provision. The employer’s instruction had respected equitable discretion since compelling operational reasons precluded the exercise of the activity at home. On the one hand, the technical equipment at the home office did not correspond to that at the office location. On the other hand, the employee had not demonstrated that the business data was protected against access by third parties, in particular by the wife working in competition.
Consequences for the practice
The decision deserves full approval and fortunately clearly strengthens employers in the reorganization of working conditions as well as company organization in the post-COVID era. We can now hardly imagine a world where there is no working from a home office, at least occasionally. Mobile working has advantages for both employers and employees: It serves to increase the competitiveness of the company and, at the same time, the attractiveness of the working environment. In the offices, the number of desks can be reduced, thus downsizing the office space. Employees benefit from additional flexibility and can thus optimally balance work and family life.
Brief information: Content of possible agreements
Employers should develop concepts regarding where work will be performed in the future.
Various approaches are conceivable here. What is clear, at the latest after this ruling, is that by implementing respective regulations employers are free to choose between the following possibilities: (a) employees returning to the office, (b) employees continuing to work from the home office, (c) each employee is free to switch between office and home office, or even (d) so-called hybrid working.
If the parties to the employment contract agree on mobile working, a written supplementary agreement to the employment contract should be concluded in any case, unless there is a collective agreement. The agreement should clarify which type of „home office“ it refers to – teleworking or mobile working. As long as the legislator has not codified any further regulations on mobile work, mobile working should be agreed upon.
In addition to typical issues such as work equipment and occupational safety, employers should pay particular attention to the following aspects:
- Since this year, the works council’s newly introduced right of co-determination in accordance with Section 87 (1) No. 14 of the German Works Constitution Act (BetrVG), according to which the works council must have a say in the design of mobile work, must be taken into account.
- Mobile work must not be performed outside the borders of the Federal Republic of Germany.
- Data protection regulations should always be agreed upon and monitored. It is advisable to provide employees with work instructions that they must comply with (this includes, for example, the exclusive use of an encrypted WLAN connection). It has already been recognized in the Corona-ArbSchV that mobile working is ruled out if data protection is inadequate.
- Effectively designed revocation clause so that, for example, employers can unilaterally bring employees back into the company from mobile work.
dominik.sorber@advant-beiten.com
