FAQs | Working from home, teleworking and mobile working

Terms such as “working from home”, “teleworking” and “mobile working” are often used interchangeably. It is important to note the differences, however.

• “Teleworking” involves setting up a computer workstation in the employee’s private space, with the employer agreeing the weekly working hours and the duration of the arrangement with the employee. A teleworking workplace is only deemed to have been set up by the employer if (i) the employer and employee have stipulated the conditions for teleworking in the employment contract or as part of an agreement, and (ii) the required fit-out of the teleworking workplace with furniture and work equipment, including telecoms, has been provided and installed in the employee’s private space by the employer or its agent. If teleworking is only performed from home, such that the employee no longer has a workplace in the company, this is referred to as “home-based teleworking”. If, on the other hand, the intention is that working should alternate between home and the company’s premises, this is called “alternating teleworking”.
• The term “mobile working” is used when the employee performs work using a mobile device (smartphone, tablet, laptop) while on the move (e.g. from a customer’s premises or while travelling), or from any other location. This can also include the employee’s home.
• “Working from home” is a colloquial expression that is often used for both forms of work described above. As such, it is not a reliable indicator of the legal situation.

Regardless of whether work is done from home, on the move or in the office, it is working time. The Working Hours Act (Arbeitszeitgesetz, ArbZG) applies to all forms of work, and also sets out the maximum working time of eight hours per day. It is possible to extend working hours to up to ten hours per day if the difference is offset within six months or 24 weeks.

It is also essential to observe the rest period of at least eleven hours after finishing work and before resuming it, as stipulated in section 5 of the Working Hours Act. A controversial issue is whether reading an e-mail late in the evening, for example, interrupts the 11 hours and resets the clock. In a decision of 23 August 2023 (5 AZR 349/22), the Federal Labor Court (Bundesarbeitsgericht, BAG) found that agreed ancillary duties aimed at securing performance, such as acknowledging text messages relating to flexible duty rosters, do not constitute working time within the meaning of the Working Hours Act. It could be concluded from this that minor interruptions of rest periods do not count. This will always depend on the specific case in question. It is not possible to tell at this stage whether lawmakers will clarify this in the course of revising the Working Hours Act, and if so, when.

Modern forms of work should not be confused with flexible working hours; work must be performed at exactly the same times as would be the case at the company’s premises. Accordingly, any changes to working hours must be arranged and introduced in addition to teleworking or mobile working, and in consultation with any existing employee representative body.

Working time fraud refers to a situation in which an employee claims to perform work that is contractually owed but does not actually do so, or only to an insufficient extent. In other words, the employee falsifies their working hours in order to receive payment. If the employee records periods of time in the time management system as working hours despite not working during these periods but being engaged in some private activity instead, for example, this constitutes working time fraud.

Working time fraud combines a breach of duty and a breach of trust, and entitles the employer, possibly after issuing a warning, to ordinary termination of employment for misconduct or, depending on the circumstances, to dismissal without notice. The main problem for companies is that they have to prove working time fraud. This is usually only not difficult if (i) working hours are precisely defined and (ii) they must also be recorded by the employee, and (iii) it can actually be proven to the employee that they did not work during the times documented in the system. To do this, it would need to be possible to demonstrate and prove that the employee did not deliver certain work results or was not contactable, for example.

All other cases will generally fall into the “suspected” category. In these situations, employers are usually well advised to adopt a multi-stage approach: (i) conduct an employee interview, perhaps setting clear objectives going forward, (ii) restrict or terminate teleworking/mobile working, (iii) take surveillance measures; use of such measures should always be carefully reviewed in advance in view of the associated intrusion into general personal rights and/or the right to informational self-determination. The co-determination rights of any works council that is in place must also be taken into account.

See also our blog posts Jiggler & Co. – working time fraud when working from home and Working time fraud during the smoking break.

There are many technical options for employee monitoring. In addition to keyloggers, which capture employees’ keystrokes, it is also possible to monitor e-mail correspondence or Internet/intranet access. Another easy option is to record when an employee logs into and out of the company network. Messenger services such as Teams, Zoom and Slack can also show when employees are actively working at their PC and when not.

But not everything that is technically possible is also legally permissible. Case law prohibits continuous monitoring without a specific reason. This applies even if the employee is aware of the monitoring. Using “milder means” must always be considered. Accordingly, detailed advance consideration must be given to each and every use of (technical) monitoring. If a works council is in place, it must also be involved.

The Working Conditions Act (Arbeitsschutzgesetz, ArbSchG) only sets out very general health and safety regulations. However, section 18 of the Working Conditions Act authorises the federal government to issue detailed ordinances with the approval of the Bundesrat. One such regulation is the Workplace Ordinance. Particular attention should be paid to Annex 6, which sets out specific requirements for computer workstations. For example, the employer must ensure that the workplace provides sufficient space for employees to change their work posture, that screens are positioned in such a way that the surface is free from glare/reflections, and that the space in front of the keyboard allows the palm of the hand to rest on it. However, section 2 (7) of the Workplace Ordinance expressly stipulates that this regulation (only) applies to tele-workplaces. It does not cover mobile working.

This does not mean that occupational health and safety does not play a role in mobile working. Employers are also obliged to observe and comply with the relevant regulations in the case of mobile working. Basically, this requires compliance with the following obligations under occupational health and safety legislation:

• Carrying out a risk assessment in accordance with section 5 of the Working Conditions Act;
• Instructing employees in accordance with section 12 of the Working Conditions Act;
  taking account of Annex 6 of the Workplace Ordinance (lawmakers expressly did not want to restrict the earlier Ordinance on Work with Visual Display Units (Bildschirmarbeitsverordnung, BildschArbV) by incorporating it into the Workplace Ordinance).

The employer’s obligations under the Ordinance on Industrial Safety and Health (Betriebssicherheitsverordnung, BetrSichV) also apply to mobile working. This ordinance regulates the use of work equipment, which must be safe and, where necessary, maintained and inspected. In addition to a separate risk assessment (section 3 (2), BetrSichV), the ordinance also stipulates that work equipment must be approved (section 5 (4), BetrSichV).

Breaches of the Working Hours Act or occupational health and safety regulations constitute an administrative offence and may also be subject to criminal prosecution.

The right of access to the employee’s home is most commonly discussed in connection with the required risk assessment (see above). The question as to whether this assessment requires an inspection of the home workplace or whether it can be replaced by a questionnaire is a controversial issue that has yet to be decided at the highest judicial level. The special protection afforded by Article 13 of the Basic Law (Grundgesetz, GG) must also be observed with regard to the employee’s home. Employers are therefore well advised to ensure that there is a contractual right of access. It should be noted, however, that it is unclear whether an arrangement of this nature would be effective. The fact that there are other people living in the home who do not consent to access by the employer could be particularly problematic in this regard. If the employee does not agree to an inspection, the employer should in any case document this fact and obtain the necessary information by means of a questionnaire (checklist) and, if necessary, arrange to be provided with photos of the workplace.

No, German law currently does not provide for a right to teleworking or mobile working. However, rules on mobile working may be included in the employment contract or in collective agreements (workplace agreement; collective bargaining agreement).

It should also be noted that the coalition agreement which underpins the current German government commits it to regulating mobile working and introducing a law on this form of work. It is no longer expected that this will be implemented in the current legislative period, however.

An employer cannot unilaterally decide to order employees to work on a mobile basis. Although employers can determine the content, location and time of the work to be performed based on their right to issue directions as defined in section 106 of the German Code of Trade and Commerce (Gewerbeordnung, GewO), they cannot require an employee to perform the work from home in future, for example. A unilateral order of this type is not possible (see Berlin-Brandenburg Regional Labor Court ruling of 14 November 2018 – 17 Sa 562/18). The only exceptions are when a corresponding agreement is contained in the employment contract, or if there are compelling reasons or exceptional circumstances (e.g. health and welfare protection in the event of a pandemic).

The same data protection principles apply to teleworking/mobile working as at the company’s premises. As stipulated in Art. 32 of the GDPR, all necessary technical and organisational measures must be implemented. Devices should be well protected and encrypted, or tunnel solutions should be used. Steps must be taken to ensure that family members do not have access to the company PC and cannot read what is displayed on the screen. It should not be possible for family members, neighbours or digital voice-activated assistants such as Alexa to overhear phone calls. Passwords must be kept safe and secure, and paper documents with confidential content must not end up (unshredded) in a private paper bin. If work is done while travelling, it is essential to protect the laptop with a privacy filter.

Since Art. 5 (2) of the GDPR stipulates that the controller as defined in Art. 4 no. 7 of the GDPR, i.e. the employer, (i) is responsible for compliance with the legal provisions and (ii) must be able to demonstrate compliance, the employee should be given clear written and documented instructions.

Mobile working exposes trade secrets to additional risk. Just as with data secrets, there is a risk that third parties (co-residents, family members, visitors) may gain access to confidential documents, that digital voice assistants may listen in, or that private devices used by several household members are used for work purposes.

An example of an appropriate technical measure to ensure confidentiality could be to ban employees from using their own devices when working from home. USB ports on company devices could also be deactivated, as could private printers connected to these devices. It is also advisable to provide privacy filters, headphones and secure document wallets. The most important principle, however, is that every employee only has access to the documents they actually need for their work.

Suitable organisational secrecy safeguards include confidentiality agreements in employment contracts or supplementary agreements, special labelling of information to be kept secret, and special training for employees around the risks associated with mobile working.

Mobile working poses special challenges for accident insurance law. This makes it likely that the social courts in particular will be confronted with a large number of disputed cases in the coming years. There is also a need for action by parliament, which made clear in the new version of section 8 (1) sentence 3 of the German Social Security Code (SGB), Book VII, that mobile employees are insured to the “same extent as when working at the company’s premises”.

Additionally, in the case of occupational accidents within the meaning of section 8 (1) of the SGB, Book VII, it is still essential to examine specifically in each instance whether the injured person met the legal requirements of an insured activity by having performed a relevant duty prior to the accident in question, and is therefore an insured person. In the event of an accident during mobile working, it would also be necessary to examine whether it occurred while performing a work-related task, or whether it can be attributed to the private sphere. Mobile working in a domestic environment in particular is likely to result in major practical issues involving mixed activities, i.e. scenarios in which (at least) two activities are carried out in parallel at the same time, of which (at least) one is insured. The crucial factor in determining whether a work accident is involved will then be whether it was the insured activity that led to the accident.

The employer must cover the costs incurred in enabling employees to perform their work duties. In other words, the employer must bear the costs for the workplace and essential work equipment. This also applies if employees work on a mobile basis. Employers must provide their employees with the necessary work equipment. If the job does not involve teleworking, the employer will set up a workplace for the employee at the company’s premises. If the employee is able to work mobile some of the time, it will likely mean in particular that the employer will provide the IT equipment required for mobile working. However, if mobile working takes place at the employee’s request, case law assumes that the employer is generally not obliged to bear any costs beyond those of the workplace at the company’s premises (see Federal Labor Court (Bundesarbeitsgericht, BAG) ruling of 12 April 2011 – 9 AZR 14/10). This means that the employer does not have to bear the costs of any home workplace set up by the employee, nor does it have to contribute to the rent, heating and electricity costs, or to any telecom expenses. Workplace agreements sometimes provide for flat-rate payments to cover these costs. On the employee side, it must also be noted that the home office allowance can be recognised in an income tax return. That is to say, a flat-rate amount is deducted as income-related expenses for each day on which the occupation is carried out solely in the employee’s private residence.

It is important to be aware, however, that the situation here is fluid. If the number of on-site workplaces is greatly reduced due to extensive mobile working, such that an employee is no longer certain of having a workplace at the company’s premises, new discussions will need to be held. In practice, flat-rate allowances to cover expenses are often agreed in this context. In addition, employers will also have an interest in making mobile working possible, which in any case requires them to provide basic technical equipment.

Employees must look after the work equipment provided to them at home and handle it with care, and must ensure that it is not damaged by other persons in their home. If a claim arises, the general principles of employee liability apply.

There are no decisions at the highest judicial level dealing with effective termination of mobile working. In particular, it is doubtful whether termination by employers is possible based on their right of direction. For these reasons, the agreement on which mobile working is based (employment contract or other agreement with the employee, or workplace agreement) should provide for a revocation option or a right of termination.

The question of the extent to which a company wishes to introduce mobile working is a business decision that does not require works council consent. As a consequence, the works council can neither prevent teleworking/mobile working from being introduced, nor compel the company to introduce it. On the other hand, the arrangements made for teleworking or mobile working, i.e. the “how”, is normally subject to co-determination as stipulated in the Works Council Constitution Act (Betriebsverfassungsgesetz, BetrVG).

The works council must be informed in good time about all aspects of the introduction of teleworking/mobile working and the relevant arrangements at the planning stage (section 80 (2) sentence 1 of the Works Council Constitution Act). The works council must also be informed about each of the proposals and their impact on employees in good time, so that it can make suggestions and raise concerns during the planning process (section 90 (1) and (2) of the Works Council Constitution Act). In addition, it must be fully informed about personnel planning, for example about how many employees will be affected or allowed to participate, or how long employment outside the company’s premises is intended to last (section 92 of the Works Council Constitution Act). Rights to consultation and to make suggestions also exist to some degree. If mobile working is introduced on a relatively large scale, section 111 of the Works Council Constitution Act may have to be observed. This grants the works council more extensive rights to information and consultation if an alteration of business operations is proposed.

As far as the specific implementation of mobile working is concerned, the works council has a right of co-determination with regard to the relevant detailed arrangements, as laid down in section 87 (1) no. 14 of the Works Council Constitution Act. Other aspects may also be affected, such as co-determination rights as defined in section 87 (1) no. 2, 3 of the Works Council Constitution Act with regard to working hours, and in section 87 (1) no. 6 of the Works Council Constitution Act with regard to the introduction and use of technical monitoring systems.