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Working from home, teleworking and mobile working

15/03/2021

The wheel can no longer be turned back: After employees in many sectors have been successfully working from home during the pandemic, employers will likely have to accept the fact that working from home and mobile working will continue to play an important role in the future. In our FAQ, we address the most frequently asked questions on this topic.


Contents

  1. What exactly is meant by working from home, teleworking and mobile working?
  2. Do the requirements of the German Working Hours Act (ArbZG) also apply to teleworking and mobile working?
  3. May employees themselves determine how they schedule their working hours when working from home or in the case of mobile working?
  4. What can the employer do about (suspected) working time fraud when employees are working from home?
  5. What technical options does the employer have to monitor its employees when they work from home?
  6. What occupational health and safety regulations apply?
  7. Does the employer have a right to access the employee's home?
  8. What are the sanctions for non-compliance with working hours and health and safety regulations?
  9. Is there an entitlement to working from home? What applies during the coronavirus crisis?
  10. Can the employer unilaterally order employees to work from home? What applies during the coronavirus crisis?
  11. What data protection regulations must be observed?
  12. How can trade secrets be protected when working from home?
  13. Who is liable for accidents at work?
  14. Who bears the costs for the equipment used when working at home?
  15. What particularities need to be considered with regard to BYOD?
  16. To what extent is the employee liable if work equipment is damaged?
  17. How can I stop employees from working from home?
  18. What codetermination rights is the works council entitled to regarding the introduction and implementation of work from home?

1. What exactly is meant by working from home, teleworking and mobile working?

The terms "working from home", "teleworking" and "mobile working" are often used synonymously. However, their meanings differ as follows:

  • Firstly, there is "(home-based) teleworking" where employees work exclusively from home and no longer have workstations in the company. The employer sets up workstations for its employees at their homes and pays the costs for them. If an employee also has a workstation in the company and alternates between working from there and from home, this is referred to as "alternating telework". This model is generally based on the employer's desire to drastically cut down on the number of workstations / amount of office space or to reduce them / it by way of "desk sharing" (several employees sharing a workstation in the office).
  • Secondly, there is "mobile working". In this case, employees perform their work using a mobile device (smartphone, tablet, laptop) while on the road (for example, from a customer’s premises or while travelling) or from any other location. This may also include their home. Employees may autonomously determine their place of performance and enjoy the associated benefits.
  • "Working from home" is a general term often used to refer to the two types described above.

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2. Do the requirements of the German Working Hours Act (ArbZG) also apply to teleworking and mobile working?

Regardless of whether the work is done from home, on the road or in the office, it is working time. The German Working Hours Act (Arbeitszeitgesetz) applies to all types of work – and thus also to the maximum limit of working hours of usually eight hours per day. As an exception, working hours may be extended to up to ten hours per day if this difference is compensated for within six months or 24 weeks. The maximum working hours are 48 hours per week.

In addition, the rest period of at least eleven hours after finishing and before resuming work, as stipulated in section 5 German Working Hours Act (ArbZG), must be observed. According to the wording of the Act, theoretically, an email read late in the evening would prohibit the start of work the next morning because no de minimis limit in terms of time or content is included in the German Working Hours Act (Arbeitszeitgesetz). In some legal literature, the view is expressed that merely minor interruptions to the rest period are not covered by the protective purpose of section 5 German Working Hours Act (ArbZG), that is, to protect the employee from being overworked, and are therefore not relevant under working hours law. In any case, clarification by the legislative body would be desirable.

Even apart from section 5 German Working Hours Act (ArbZG), it should be clarified between employer and employee in which time frame employees are required to read their emails. If this is outside the employee's actual working hours, the question arises as to what extent this constitutes on-call duty (subject to remuneration).

Furthermore, the break times in accordance with section 4 German Working Hours Act  (ArbZG) must be observed.

Employees should also be encouraged to document working hours.

Note: At the end of November 2020, the German Federal Ministry of Labour and Social Affairs presented the second draft of the Mobile Work Act (Gesetz zur mobilen Arbeit – MAG). It includes provisions intended to newly regulate the recording of (mobile) working hours. A new section 112 Trade, Commerce and Industry Regulation Act (GewO) is envisaged stipulating that section 16 (2) sentence 1 German Working Hours Act (ArbZG) is to be modified to the effect that the employer is required to record beginning, end and duration of the entire working hours on the day of work performance. These records must be kept for at least two years. In addition, employers may delegate the recording duty to their employees but remain responsible for proper recording.

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3. May employees themselves determine how they schedule their working hours when working from home or in the case of mobile working?

Working from home and mobile working must not be confused with flexible working hours models. Therefore, work must initially be performed in exactly the same way and at exactly the same hours as in the company. If flexible working is desired, corresponding working hours models must be developed in addition to the models of teleworking / working from home / mobile working, for example in the form of working time accounts.

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4. What can the employer do about (suspected) working time fraud when employees are working from home?

The fact that in many sectors people are working from home to a large extent during the coronavirus crisis raises the question of what employers can do if they suspect that their employees working from home are not providing the contractually agreed level of performance. This stems from the fact that monitoring employees working from home is undoubtedly more difficult than monitoring them on the company's premises. Where there is no electronic monitoring system which can also be used by the employees when they are working from home, it is definitely advisable to have employees document the beginning and end of their working hours as well as their breaks.

Before asking about the consequences in terms of employment law, it is first necessary to clarify the circumstances in which working time fraud is deemed to exist. Working time fraud is deemed to be where an employee accepts payment for working time which he has not worked. There are cases, both in the office and when working from home, which most definitely constitute fraud. An employee recording breaks as working time or asking a colleague to clock him in earlier than when he actually arrives at work, are obvious examples of fraud. But what about employees having coffee and chatting with colleagues when they are not on a break? In such cases, although it is true that the employee is not working, nobody immediately thinks of working time fraud, at least not if this remains within the boundaries of common practice. Making the occasional short urgent private telephone call will not satisfy the requirements for working time fraud either. 

These principles can also be applied to cases where employees are working from home: a short conversation with family members, taking receipt of a parcel or making a cup of coffee are socially acceptable provided these things do not interfere with the employer's work processes. However, supervising a child doing homework, hanging up the laundry or going for a walk during working hours probably go beyond what is permissible. If, however, employees have flexible working hours and exclude such times from their working hours or interrupt the hours recorded, these activities did not ought to be objectionable in principle. The same applies to trust-based working hours. In such cases, working time fraud is practically completely out of the question.

Working time fraud is both a breach of duty and a breach of trust at the same time, entitling the employer – where applicable after issuing formal warning – to terminate the employment relationship with notice for reasons relating to conduct (ordentliche verhaltensbedingte Kündigung) or, depending on the circumstances, to terminate the employment relationship without notice for good cause (außerordentliche Kündigung). The big problem for companies is that they have to prove working time fraud. This is usually only easy to do if set working hours are precisely defined. This is not the case in many workplaces. Employees can therefore often easily find excuses. If, however, the employer succeeds in proving fraud by monitoring the recorded time data, this is not a violation of data protection law, see decision of Cologne Regional Court in a case decided on 29 September 2014 (2 Sa 181/14). In the judges’ view, the purpose of data protection is not to cover up fraudsters.

If the employer has reasonable suspicion but cannot provide actual proof, a dismissal on grounds of suspicion may be an option. Unlike in the case of a "normal" dismissal, a dismissal on grounds of suspicion does not require the employer to provide full evidence that the employee has committed a criminal offence or a serious breach of duty. Instead the employer can already resort to a dismissal on grounds of suspicion if there is a strong suspicion but no clear evidence. In such cases termination with notice is not permissible, but termination without notice for good cause can be issued in certain circumstances.

Quite apart from the offence of working time fraud, the problem remains that "low performers" have even better chances of making themselves nice and comfortable when working from home. Employers should try to exclude such employees from working from home or limit the time they work from home to what is absolutely necessary.

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5. What technical options does the employer have to monitor its employees when they work from home?

There are many technical options for monitoring employees. In addition to installing a webcam, it is conceivable to use a "keystroke logger", which stores the employees' keystrokes. Moreover, email histories or access to the internet/intranet can also be monitored. It is easy to record when the employee has logged in to the company network and logged out again. Office communicators with status lights show when employees are actively working on the PC and when they are inactive.

Just because something is technically possible, however, does not mean that it is also permitted. In any event, case law prohibits seamless monitoring without any reason. This applies even if the employee is aware of the monitoring. In addition, "milder means" must always be sought.

Therefore, using a webcam for monitoring purposes should hardly be possible in practice. Whether checking the employees’ browser history or emails is permissible depends on whether they have been permitted private use of the business devices/accounts. If the employer prohibits private use, it can in principle access emails and browser histories of its employees, even if only to check compliance with the prohibition. But here, too, permanent monitoring is out of the question. If private use is permitted, the employer generally no longer has any access rights. Exceptions are only conceivable if there are clear indications that criminal offences have been committed.

In addition to high fines, rights to injunctive relief and claims for damages may ensue from unlawful employee monitoring. Monitoring actions should therefore be carefully considered.

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6. What occupational health and safety regulations apply?

The German Occupational Health and Safety Act (Arbeitsschutzgesetz) contains only very general occupational heath and safety regulations. Section 18 German Occupational Health and Safety Act (ArbSchG), however, authorises the German Federal Government to issue detailed ordinances with the consent of the German Federal Council – such as the German Workplaces Ordinance (Arbeitsstättenverordnung). However, section 2 (7) German Workplaces Ordinance (ArbStättV) explicitly states that this ordinance applies only to teleworking, but not to mobile working.

A tele workstation according to the German Workplaces Ordinance requires two things:

  • A contractual agreement on the conditions for teleworking must have been concluded between the employer and the employee.
  • The employer must have provided and installed the required equipment of the home-based office, ultimately meaning that it has provided a workstation equivalent to the one in the office.

If such a tele workstation exists, the employer essentially has three obligations:

  • When assessing the working conditions and the workstation for the first time, the employer must carry out a risk assessment to identify and eliminate any hazards (section 3 German Workplaces Ordinance (ArbStättV)). Whether an inspection of the home-based tele workstation is necessary for this purpose or whether this can be substituted by enquiries is highly controversial and has not yet been decided by the highest courts.
  • The employer must instruct the employees (section 1 (3) no. 2 and section 6 German Workplaces Ordinance (ArbStättV)) meaning that, based on the risk assessment, it must provide employees with sufficient and appropriate information concerning hazards when working from home, for example the physical strain on muscles and bones when using display screens or the psychological strain caused by mixing work and private sphere.
  • Annex 6 of the German Workplaces Ordinance sets out specific requirements for DSE workstations ("Display Screen Equipment Ordinance"). For example, the employer must ensure that the workstation provides sufficient space for changing working postures, that display screens are set up in such a way that the surfaces are free of interfering reflections / glare and that the work surface in front of the keyboard enables the wrists to be rested on it. Laptops, notebooks and tablets may only be operated at workstations where the devices are only used for a short period of time or where the work tasks cannot be performed with any other display screen equipment. If they are used permanently at workstations without any special reason, separate keyboards and display screens must be connected that comply with the requirements of the German Display Screen Equipment Ordinance.

According to the wording of the Ordinance, "only" the less specific provisions of the German Occupational Health and Safety Act apply to mobile working, but not the German Workplaces Ordinance.

According to prevailing opinion, the following occupational health and safety obligations principally apply to mobile work:

  • The prevailing view expressed in legal literature is that a risk assessment in accordance with section 5 German Occupational Health and Safety Act (ArbSchG) is necessary also in respect of mobile work. From the protective purpose of the provision, it could be argued that this is not necessary when work is carried out from home only part of the time (one to two days per week). However, there is not yet any case law on this issue.
  • Pursuant to section 12 German Occupational Health and Safety Act (ArbSchG), the employer has a duty to provide training. As part of this, the employee should be informed, for example, about how a DSE workstation must be designed in order to comply with occupational health and safety regulations.
  • In addition, even in the case of mobile work, the employer should as far as possible adhere to Annex 6 of the German Workplaces Ordinance (Design of DSE Workstations), as the legislator did not intend to diminish the significance of the former German Display Screen Equipment Ordinance by integrating it into the German Workplaces Ordinance.

The umbrella association of the German Social Accident Insurance (Spitzenverband der Deutschen Gesetzlichen Unfallversicherung (DGUV)) has made practicable recommendations for the design of mobile working in light of the increased number of employees performing mobile work during the coronavirus crisis.

In any case, employers should always bear in mind that intensive non-ergonomic work poses a serious health risk to employees, which can lead to long-term absence owing to illness.

The employer's obligations resulting from the German Industrial Safety Regulation (BetrSichV) also apply to work from home. This Regulation sets out the rules for the use of work equipment. The latter must be safe and, as far as necessary, maintained and inspected. In addition to a separate risk assessment (section 3 (2) German Industrial Safety Regulation (BetrSichV)), the Regulation also provides for the obligation to approve work equipment (section 5 (4) German Industrial Safety Regulation (BetrSichV)).

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7. Does the employer have a right to access the employee's home?

The right to access the employee's home is mainly discussed in connection with the required risk assessment (see above). Whether an inspection of the home-based workstation is necessary for this purpose or whether this can be substituted by enquiries is controversial and has not yet been decided by the highest courts. In case of doubt, the employer should have such a right contractually guaranteed, although it is unclear whether such a clause would be valid. A problem can be posed by the fact alone that other persons reside there who do not consent to access by the employer. If the employee does not agree to an inspection, the employer should in any case document this and obtain the necessary information by means of a questionnaire and, if necessary, also have photos of the workstation sent to it.

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8. What are the sanctions for non-compliance with working hours and health and safety regulations?

Intentional or negligent violations of the German Working Hours Act (e.g. exceeding the statutory working hour limits, failure to take breaks, breach of the minimum rest period, violation of provisions relating to work on Sundays and public holidays) may be punished by fines of up to EUR 15,000. The ministerial draft bill on the German Occupational Health and Safety Control Act (Arbeitsschutzkontrollgesetz), which regulates, among other things, requirements for accommodation, documentation obligations and prohibitions on external staff for the meat industry, even stipulates an increase in the fine to EUR 30,000. If the health or working capacity of an employee is deliberately endangered in the context of these violations or if these administrative offences are persistently repeated, imprisonment for up to one year or a fine is possible.

Section 9 (1) German Workplaces Ordinance (ArbStättV) in conjunction with section 25 (1) no. 1 German Occupational Health and Safety Act (ArbSchG) states that it is an administrative offence to intentionally or negligently fail to document a risk assessment correctly, completely or in a timely manner or to ensure that employees are trained before commencing work. Fines can be imposed up to an amount of EUR 5,000. An intentional act that endangers the life or health of employees is punishable under section 9 (2) German Workplaces Ordinance (ArbStättV) in conjunction with section 26 no. 2 German Occupational Health and Safety Act (ArbSchG). Also in this case, imprisonment for up to one year or a fine is possible.

However, since the German Workplaces Ordinance only applies to telework, but not to mobile work, the employer cannot commit an administrative offence / criminal offence in this area according to the current legal situation. This is because the German Occupational Health and Safety Act itself does not contain a definition as to when an administrative offence or criminal offence exists, but only refers to ordinances in this regard. According to the principle of "nulla poena sine lege", possible violations of occupational health and safety law cannot be punished. It is conceivable, however, that an authority will intervene and order the employer to take certain measures. If the latter then fails to comply with the request, it commits an administrative offence under section 22 (3) German Occupational Health and Safety Act (ArbSchG) in conjunction with section 25 German Occupational Health and Safety Act (ArbSchG). The fine may be up to EUR 30,000.

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9. Is there an entitlement to working from home? What applies during the coronavirus crisis?

In Germany, there is no legal entitlement to working from home to date. This also applies in times of the pandemic. Thus, employees may not automatically stay away from work when an infection is going around out of fear of catching it. Unless there are provisions to the contrary in the employment contract and in works/collective agreements, they must appear at the workplace.

However, the German SARS-CoV-2 Occupational Health and Safety Regulation (SARS-CoV-2-Arbeitsschutzverordnung) has been in effect since the end of January 2021 and is initially limited until 15 March 2021. It states that in the case of office work or comparable activities, employers must offer employees the option of carrying out these activities at home, unless there are compelling operational reasons to the contrary. However, the Regulation does not provide for a corresponding right of employees to work from home. Employees therefore cannot assert a claim to work from home in court. Nevertheless, companies face fines and penalties for violations of occupational health and safety regulations. This obligation imposed by the new Occupational Health and Safety Regulation should therefore be taken seriously.

Compelling operational reasons that justify refusal to allow employees to work from home may be based, for example, on the unavailability of required IT equipment or, in some cases, on special data protection requirements. Employers are well advised to carefully document these reasons.

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10. Can the employer unilaterally order employees to work from home? What applies during the coronavirus crisis?

As a rule, the employer cannot unilaterally order employees to work from home. Although it may determine the content, place and time of the work to be performed within the scope of its right to issue directives under section 106 German Trade, Commerce and Industry Regulation Act (GewO), it is not entitled to order its employees to work from home in this connection. According to the Berlin-Brandenburg Regional Labour Court ruling of 14 November 2018 – 17 Sa 562/18 – such a unilateral order is not covered by its right to issue directives. An instruction to work from home is possible only if a corresponding agreement has been made in the employment contract.

Even in times of a pandemic, the employer may not forcibly use the employee's private living space as office space. Accordingly, under the new German SARS-CoV-2 Occupational Health and Safety Regulation, there is also no obligation for employees to switch to working from home. The legislator simply asks them to make use of the employer’s offer if possible.

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11. What data protection regulations must be observed?

The same data protection principles apply to teleworking / mobile working as on the company's premises. According to Article 32 GDPR, all appropriate technical and organisational measures must be implemented.

Thus, the end devices should be well protected and encrypted or tunnel solutions should be used. It must be ensured that family members do not have access to the company PC and cannot read what appears on the screen. It should not be possible for family members, neighbours or digital voice assistants such as Alexa to overhear phone calls. Passwords must be kept locked away and paper with confidential content must not end up in the bin without being shredded. If work is performed while travelling, the laptop should always be protected with privacy shield films.

Since Article 5 (2) GDPR stipulates that the controller under Article 4 no. 7 GDPR, that is, the employer,

- is responsible for compliance with the legal provisions

- and must be able to demonstrate such compliance

the employee should receive clear written instructions. Guidelines for working from home as an addendum to the employment contract or – if there is a works council – a works agreement are particularly useful. In addition, the employer should reserve the right to carry out checks, which can be done, for example, through employee surveys.

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12. How can trade secrets be protected when working from home?

As of 26 April 2019, only information that is "subject to reasonable steps to keep it secret under the circumstances" is considered a trade secret, see section 2 no. 1 German Trade Secrets Act (GeschGehG). Where these steps are not taken, a company is forfeiting all claims for protection under the Act such as cease and desist entitlements, entitlements to have items returned or to request information. What is deemed a reasonable step depends on the circumstances of the individual case. In any event, it is important to be aware that not all trade secrets within the meaning of the German Trade Secrets Act are protected simply because an employee was placed under the obligation to maintain confidentiality in accordance with the General Data Protection Regulation.

In any case, working from home constitutes an additional threat to trade secrets. As with data secrets, there is a risk that cohabitants can gain access to confidential documents, that digital voice assistants can listen in or that private devices used by other household members may be used for work.

A suitable technical confidentiality measure could be to prohibit employees from working at home using their own equipment. In addition, USB ports of business devices can be disabled, as well as private printers on business devices. It is also useful to provide protective films, headphones or lockable folders. What is most important, however, is that each employee only has access to the documents actually needed for his or her work.

Suitable organisational measures to protect trade secrets include non-disclosure agreements in employment contracts or as supplementary agreements, special marking of information to be kept secret, or special employee training on risks when working from home.

Employers should document all measures taken in writing, since they bear the burden of proof regarding compliance with legal requirements.

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13. Who is liable for accidents at work?

When working outside the office, statutory accident insurance only covers accidents directly related to the work. Thus, working at a desk at home and travelling from home to the employer’s premises is covered by the insurance as is walking to the printer or the cupboard for office materials.

While going to the toilet or to the kitchen is covered by the statutory accident insurance when working at the employer’s premises, this is not the case when working somewhere else. Thus, if an employee is injured at home on the way to the coffee machine, this will not be covered by statutory accident insurance according to the case law of the German Federal Social Court, see for example the decision of the German Federal Social Court (BSG) of 5 July 2016 – B 2 U 5/15 R – or of 30 January 2020 – B 2 U 19/18 R.

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14. Who bears the costs for the equipment used when working at home?

In principle, employers have to bear the costs incurred to put employees in a position to perform their duty to work in the first place. The employer must therefore bear the costs of the workstation and work equipment. This also applies to employees working from home. Employers must provide their employees with the necessary work equipment such as office supplies, office furniture and technology at their expense, pay maintenance costs and make a flat-rate contribution to running costs for heating, water, electricity and telecommunications costs, for example.

However, if an employer provides the employee with a workstation in the company and the work from home is carried out exclusively at the employee's request, the German Federal Labour Court (BAG) recognises that in this case the employee has no claim to reimbursement of expenses (German Federal Labour Court, decision of 12 April 2011 – 9 AZR 14/10). The same applies if employees are free to decide where they want to work. As long as a workstation is available for an employee in the company, the company is not required to bear the costs.

The boundaries are blurred in this respect. If the number of internal workstations is significantly reduced due to extensive mobile activity to the extent that it is no longer certain that a workstation in the company is available, new discussions will have to be held. If necessary, flat rates for expenses can be agreed upon.

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15. What particularities need to be considered with regard to BYOD?

Where employees contractually undertake to procure the necessary work equipment themselves ("Bring your own device – BYOD"), the employer will naturally save costs initially. However, data protection issues often arise when private devices are used for business purposes. For example, the employee stores and processes business data on devices that are beyond the employer's control. This makes it considerably more difficult to protect business data. It is not so easy to ensure the important separation between private and business data either. It seems advisable to define minimum standards. For example, third-party access to these devices should be prohibited. In addition, the user's own end device should be adequately secured. It has to be clarified which (cloud) services are allowed be used. In the case of mobile end devices, it is important to consider that certain apps can pose security risks. As a result, BYOD is not advisable.

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16. To what extent is the employee liable if work equipment is damaged?

Employees working at home must handle the work equipment provided to them with care and make sure that it is not damaged by other individuals who are in their living quarters. If damage occurs, the general principles for employee liability apply:

Employees have limited liability within their relationship with their employers if damage occurs as a result of a professional/business activity. They have no liability in the event of very slight negligence, and damage is shared in the event of ordinary negligence, in consideration of all of the circumstances of the individual case. Employees are usually liable to the full extent for gross negligence. There is no limitation of liability in the event of intentional damage.

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17. How can I stop employees from working from home?

In the case of occasional mobile working, this question is unlikely to arise. However, if employees are permitted to work outside the company on specific days, or even use an actual tele workstation, the issue may well become relevant.

A distinction is to be made between the following scenarios:

  • There is an individually negotiated agreement with an employee. In this case, the parties have to comply with their obligations. When concluding such agreements, it is therefore important that a mobility clause is included providing for a change of work location, that suitable factors regarding an end to working from home are agreed upon or that a fixed term is provided for from the outset. Alternatively, notice of termination pending a change of contract could be considered. A prerequisite for its validity would be that the instruction to return to the office is due to reasons which lie in the person or the conduct of the employee or due to urgent operational requirements. This prerequisite may generally be difficult to satisfy.
  • Agreements have been concluded with a large number of employees: According to a decision of the Düsseldorf Regional Labour Court, judgment of 10 September 2014 – 12 Sa 505/14 – termination by revocation without reservation is hardly feasible in this case. In fact, the revocation proviso must indicate that the interests of the employee are to be sufficiently taken into account. The employer must also obtain the consent of the works council to the relocation.
  • During the coronavirus pandemic, many employees have switched from working in the office to working at home without a separate agreement. This does not give rise to an entitlement to continue working at home on a permanent basis. After this relatively short period of time of working from home, the employer will still be entitled to the authority to issue directives on the place of work under section 106 German Trade, Commerce and Industry Regulation Act (GewO). Employers may demand that the employees return to work but have to grant a reasonable period of time in this respect.

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18. What codetermination rights is the works council entitled to regarding the introduction and implementation of work from home?

If a company wants to introduce work from home, this is an entrepreneurial decision that is not subject to the consent of the works council. The works council can therefore neither prohibit nor require the introduction of telework/mobile work. The organisation of the telework or mobile work in terms of content, meaning "how" it is planned, can, however, be subject to the codetermination/participation of the works council regarding personnel, social and economic matters under the provisions of the German Works Constitution Act (Betriebsverfassungsgesetz)

The works council must first be supplied in good time with comprehensive information concerning the introduction and organisation of telework/mobile work right from the planning phase (section 80 (2) sentence 1 German Works Constitution Act) (BetrVG). The works council must also be informed of the individual measures and their effects on the employees in good time so that it can put forward suggestions and concerns during the planning process (section 90 (1) and (2) German Works Constitution Act (BetrVG)). In addition, the works council must be informed in full of matters relating to manpower planning, thus – for example – how many employees should / may participate or how long the work outside the business establishment is expected to last (section 92 German Works Constitution Act (BetrVG)). Within certain limits, the works council has rights in this respect to be consulted and to make suggestions as well. If work from home is introduced on a large scale, section 111 German Works Constitution Act (BetrVG), which provides the works council with far-reaching rights to be informed and consulted in the event of substantial alterations to the establishment, must be complied with.

In cases concerning the concrete implementation of work from home, the works council has codetermination rights under section 87 (1) nos. 2, 3 German Works Constitution Act (BetrVG) with respect to working hours, under section 87 (1) no. 6 German Works Constitution Act (BetrVG) with respect to the introduction and use of technical monitoring devices, under section 87 (1) no. 7 German Works Constitution Act (BetrVG) with respect to rules for the prevention of accidents and under section 87 (1) nos. 10, 11 German Works Constitution Act (BetrVG) with respect to remuneration.

For individual staff measures, thus – for example – when a normal workplace is converted into a home workplace, the works council has a codetermination right under section 99 German Works Constitution Act (BetrVG). Codetermination rights can also arise from sections 91 and 102 German Works Constitution Act (BetrVG).

It often appears to be useful to set out a work from home policy in a works agreement.

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More FAQs about the effects of Coronavirus on German employment law


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