Back to the office – employer may order return from home office

closeup of a young man in an office holding a briefcase and a surgical mask in his hand

An employee who has been permitted by his employer to work from his home office during the pandemic does not thereby acquire the right to work from home on a permanent basis. The employer may order a return to work in the office within the scope of its right to issue instructions.

1. Facts

The employee was employed full-time as a graphic designer. Since December 2020, the employer allowed the graphic designer, who otherwise worked in the office, to work from home. By instruction dated February 24, 2021, the employer demanded that the graphic designer again conduct his work on site in the office. The plaintiff took legal action against this before the labor court with the aim of ensuring that he would continue to be permitted to work from his home office in the future and that he would only have to work from the office in exceptional cases.

2. Decision

The Munich Labor Court rejected the graphic designer’s application for an interim disposal. The Munich State Labor Court has now confirmed this decision in its judgment of August 26, 2021 (3 SaGa 13/21).

The employer was allowed to re-determine the graphic designer’s place of work by issuing instructions at its own reasonable discretion. Neither the employment contract nor a tacit agreement between the parties stipulated that the place of work was to be the plaintiff’s place of residence. A right to perform the work from home had also not existed in February 2021 according to the SARS-CoV-2-Arbeitsschutzverordnung (specifically section 2 para. 3 SARS-CoV-2-ArbSchVO a.F.). Therefore, the employee would not have a subjective right to a home office.

The employer’s instruction that the graphic designer had to work from the office again was in accordance with reasonable discretion. The abstract danger of contracting Sars-CoV-2 on the way to work and the general risk of infection at the workplace were not opposed to this.

In addition, in the current case, operational reasons precluded the continued performance of activities from the home office. On the one hand, the technical equipment in the home office did not correspond to that in the office. Secondly, the graphic designer had not demonstrated that the data in the home office was protected from access by third parties, in particular from access by his wife who is working for a competitor.

3. Practical Advice

In times of a pandemic, many things are uncertain for employers against the background of constantly changing and unclear legal regulations. The decision of the Munich State Labor Court can be seen as a first important signal in jurisdiction to strengthen the employer’s right to issue instructions, even in times of the Corona pandemic. The judgment confirms that the specification of the duty to work and thus the determination of the place of work is in principle a matter for the employer, subject to reasonable discretion, unless otherwise agreed between the parties.

However, the judgment must not be understood to mean that a return to the office could and may be ordered by the employer always and in all cases. When exercising equitable discretion, it is always a matter of balancing the interests of the employer and the interests of the employee in the individual case. Employers should therefore always consider the circumstances of the individual case when issuing an order to return to the office from the home office.

In addition, it is recommended that employers explicitly regulate the principles of performing work from outside the company. In particular, clear and unambiguous specifications should be made on a regular basis regarding the scope, reservation of the right of direction, occupational safety and health, protection of data and secrets, technical and spatial requirements, compliance, etc.

In addition, since 18 June 2021, employers must comply with section 87 (1) no. 14 of the Works Constitution Act (Betriebsverfassungsgesetz – BetrVG) when designing regulations on the provision of work outside the workplace. This stipulates that the works council has a right of co-determination in the design of mobile work provided by using information and communication technology. This norm does not establish a right of initiative of the works council to introduce mobile work, i.e. it is not a question of “whether”, but only of “how”, if an employer has already decided to introduce mobile work. The right of co-determination includes, for example, regulations on the time scope of mobile work, on the place from which mobile work may be carried out or on accessibility. The practical significance of this addition to the Works Council Constitution Act (BetrVG) remains to be seen, as most conceivable regulations associated with the organisation of mobile work, such as working hours, the introduction of certain technical equipment or questions of occupational safety, are already subject to co-determination by the works council. However, it will be seen how generously the labour courts will interpret the new right of co-determination.

Further developments in jurisdiction and legislation on the subject of home office and return from the home office remain interesting. We will keep you informed about this as usual.

Related Posts