In order to increase presence in the office, many employers are renegotiating existing provisions on working from home. In doing so, the interests of employers in increasing productivity and employees in flexible working conditions must be balanced. In addition to personnel management issues, legal hurdles in particular need to be taken into account if employees are to be brought back to the office.
Background
During and even after the end of the coronavirus pandemic, working from home has brought various benefits for employees. These include, for example, the elimination of commuting times and more of a work life balance.
Many employers feel that employees working in the office are more committed and creative and can contribute more than those working from home. The informal exchange of experiences, social contact and collaboration are found in the office environment. In addition, the separation of home and work can be more advantageous for employees health and wellbeing. In this context, for example, the communal experience of a shared workplace can make onboarding easier, especially for younger colleagues. Last but not least, good working conditions, such as better office equipment or compliance with working time regulations, could be better guaranteed in the office. Against this backdrop, more employers are looking at the (legal) options for increasing the presence of their employees in the office.
In order to prevent potential tensions between employers and employees in response to this change, employers should create clear and needs-based structures for working from home and comply with the legal framework. In this respect, the following aspects in particular should be taken into account.
The extent of the right
Employees have no (legal) right to work from home. Employers are therefore generally permitted to unilaterally terminate working from home by instructing employees that the place of work is the office, generally an employer is permitted to instruct its employees as to the place of work at its reasonable discretion. This applies in principle in any case where the employer has only temporarily permitted working from home, for example to fulfil the obligation to work from home during the coronavirus pandemic.
If working from home was merely tolerated by the employer, employees can be asked to return to the office. However, such instructions must be issued at "reasonable discretion" and should take into account the employee's personal circumstances, such as their caring obligations or any illnesses. If an employee has already been working exclusively from home for a very long time, a period of notice may be required in individual cases, as a required return on shirt notice may prove to be unreasonable and therefore legally inadmissible.
Contractual termination options
An instruction to return to the office is not permitted if another place of work (e.g. the home office) has been contractually agreed or the termination of work in the home office is linked to certain conditions in the employment contract, collective agreement or works agreement. Before exercising the right to issue an instruction to return to the workplace, any agreements relating to the employment must therefore first be reviewed. Contractual termination options may arise for employers, for example, from a cancellation clause or the agreement of a right of termination.
When drafting cancellation clauses, the German Federal Labour Court (Bundesarbeitsgericht – BAG) case law on reservations of cancellation within the meaning of Section 308 No. 4 of the German Civil Code must be taken into account. This rules out unconditional cancellation, as this would constitute an unreasonable detriment to the employee. Consequently, the reasons for triggering the right of cancellation must be included in the clause. Possible grounds for cancellation include non-compliance with data protection regulations in the home office or abuse of the relationship of trust on which the home office activity is based. An appropriate notice period should also be provided, especially for employees who work exclusively from home.
Furthermore, it is advisable to agree a right of cancellation for the termination of the home office in the supplementary agreement on working from home. The Hamm Regional Labour Court recently ruled that a contractual agreement on the ability to terminate a supplementary agreement on working from home is generally permissible (Hamm Regional Labour Court, 16 March 2023 – 18 Sa 832/22). If the possibility of termination has been effectively agreed, instructions on the new place of work must be issued in addition to the notice of termination, which in turn must correspond to equitable discretion.
If home office work is to be trialed initially, another option is to agree a fixed term, after which the employee is automatically obliged to work at the office again.
In the absence of contractual provisions on the termination of home office work, the only remaining option is to give notice of termination, which in turn presupposes that a return to the office is absolutely necessary. The legal hurdles in this respect are very high, which is why contractual termination options are preferable in any case.
Complying with co-determination rights
A change of work location may qualify as a transfer pursuant to Section 99 BetrVG, which requires the information and consent of the works council. A transfer is defined as the assignment to a different work area that is expected to last longer than one month or that is associated with a significant change in the working conditions under which the work is to be performed (Section 95 (3) sentence 1 BetrVG). In this respect, the prevailing opinion is that an order to return to the company workplace constitutes a transfer requiring consent. This is to be assumed in any case if an employee is to work exclusively in the office again. At least this is the way the BAG ruled in a case on the termination of alternating teleworking, which was to result in the employee working exclusively at the company workplace (BAG, 20.10.2021 – 7 ABR 34/20).
Conversely, it could be argued that only a slight increase in presence in the office does not qualify as a transfer, as it is not exclusively the place of work that changes, but (only) the distribution of working hours at the different work locations.
If employers wish to change or introduce regulations on working from home that have already been established, the works council's right of co-determination pursuant to Section 87 (1) No. 14 BetrVG must also be considered. The decision on the introduction or termination (e.g. by cancelling the corresponding works agreement) of home office work is not subject to co-determination by the works council, as this is a question of "whether". However, the question of the content of the organisation of home office or mobile working is subject to co-determination as part of the "how".
It is disputed whether the works council also has a right of co-determination regarding the scope of home office activities (i.e. the number of days). In a recent decision, the Munich Labour Court (18.04.2023 – 40 BVG a 8/23) rejected a right of co-determination for the introduction of a certain number of team days per month despite the existence of a works agreement on working from home.
Conclusion
Before unilaterally imposing compulsory attendance in the office, employers should check existing agreements to see whether they restrict the employer's freedom of decision. Otherwise, there is some flexibility within the bounds of reasonable discretion. Rather than imposing a blanket ban on homeworking or mobile working, employers would also be well advised to leave employees some room for flexibility. After all, the ability to work from home is now an important requirement that employees have of a (new) employer.
