Home Office Forever? That doesn't have to be the case, the Munich Regional Labour Court ruled

If the parties to the employment contract agree on mobile working, a written supplementary agreement to the employment contract should be concluded, unless there is a collective agreement. The agreement should clarify which type of "home office" it refers to - teleworking or mobile working.

According to the decision of the LAG Munich of 26 August 2021 (Case No 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, many employees are 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 took a very clear decision regarding this question.

Definition - What is meant by "home office"?

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. According to Section 2 (7) sentence 1 of the German Work- place Ordinance (ArbStättV), tele workstations are DSE (display screen equipment) workstations installed permanently by the employer in the workers’ private sphere; the employer stipulates 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 characterised by the fact that employees perform their work from any location outside the company premises (but within Germany) - it may be their favourite 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. Conversely, an entitlement ultimately 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) per- formed 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, who was employed full-time as a graphic designer. In December 2020, the managing director ordered employees to perform their work from their respective places of residence. Only the administrative employees 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 Labour Court dismissed the expedited motion

The Munich Labour Court dismissed the employee's application for a preliminary injunction. An entitlement to work from the home office does not result from either an employment contract or 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 does not limit the employer's right to issue instructions.

The Regional Labour Court confirmed the decision

The LAG Munich confirmed this decision. It stated that the employer was entitled to (re)determine the place of work and issue instructions accordingly 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 be- tween the parties. A right to perform work from home did not exist in February 2021 according to Section 2 (4) CoronaArbSchVO. The legislator did not intend 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 who worked for a competitor.

Consequences for practice

The decision deserves full approval and fortunately clearly strengthens employers in the reorganisation of working conditions as well as company organisation in the post-COVID era. It is now difficult to 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 offices, the number of desks can be reduced, thus downsizing the office space. Employees benefit from additional flexibility and can find a better work-life balance.

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) allowing each employee to switch between office and home office as they wish, 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, unless there is a collective agreement. The agreement should clarify which type of "home office" it refers to - teleworking or mobile working. If the legislator has not codified any further regulations on mobile work, mobile working should be agreed.
In addition to typical issues such as equipment and occupational safety, employers should pay particular attention to the following aspects:

• Since this year, works councils have had a 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.
• 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 mandatory work instructions (this includes, for example, the exclusive use of an encrypted WLAN connection). The Corona-ArbSchV already recognises that mobile working is ruled out where data protection is inadequate.
• An effectively designed revocation clause so that, for example, employers can unilaterally bring employees back into the company from mobile work.