home office agreement

Home office: agreement with the employer

Unlike in the Netherlands, employers in Germany are not required to provide a reason why employees cannot work from home. There is currently no legal regulation for this. Learn more about the current labor law framework for establishing home office arrangements here.

Right to work from home: Legal regulations and case law

  • No general legal right to work from home.
  • In certain cases, case law has recognized a right to work from home.
    • According to Section 164 Paragraph 1 of the Social Code Book IX, severely disabled people have the right to suitable employment.
    • The Lower Saxony State Labor Court has concluded that groups in particular need of protection may have the right to work from home.
      • Example: Paraplegic employee (LAG Lower Saxony, judgment of December 6, 2010, case number 12 Sa 860/10).

Home office by work instruction: Legal basis and limits

  • Employers cannot unilaterally instruct employees to work from home.
  • According to Section 106 of the German Trade Regulation Act (GewO), the employer may determine the place of work at his or her reasonable discretion, however:
    • This right to give instructions ends when the employee’s fundamental rights are affected.
    • The private sphere is particularly affected, as the home is part of this area.
  • Transferring employees to work from home by order is not permitted.
  • If an employee disobeys such an instruction, this cannot serve as a basis for effective dismissal.
    • Example: The Berlin-Brandenburg Regional Labor Court ruled on October 10, 2018 (case no. 17 Sa 562/18) that termination is invalid if the employee refuses to work from home after the company closes.
    • The court found that there was no persistent refusal to work.

Working from home: mutual agreements and regulations

  • Working Hours Act (ArbZG):
    • The Working Hours Act also applies to home offices.
    • Employees must comply with the following regulations:
      • Maximum working hours
      • Rest breaks and rest periods
      • Prohibition of work on Sundays and public holidays
    • Employers should draw attention to these regulations and implement a time recording model.
  • Occupational safety:
    • The employer must ensure that occupational health and safety measures are also guaranteed in the home office.
    • Required steps:
      • Determination of necessary occupational safety measures
      • Carrying out a risk assessment
    • Although there is no obligation to monitor the home office workplace, detailed interviews and appropriate training are required.
    • Occupational health care (ArbMedVV) must also be observed.
  • Data protection:
    • High requirements for data security and IT infrastructure must be met in the home office.
    • Employers must take appropriate data protection measures and ensure that employees comply with data protection regulations.
    • Important measures:
      • Use of VPN connections
      • Secure storage of data via company servers
  • Co-determination in mobile work (Section 87 (1) No. 14 BetrVG):
    • The Works Council Modernization Act regulates the co-determination of works councils in mobile work.
    • Aspects of co-determination:
      • Regulations regarding the time scope of work
      • Start and end of daily working hours
      • Place of work, attendance requirements and accessibility
      • Security aspects
    • However, the decision as to whether mobile work is permitted remains with the employer.
  • Accident insurance cover in the home office (Section 8 SGB VII):
    • Statutory accident insurance coverage for home office workers has been expanded.
    • Accidents that are directly related to work are insured.
    • This also includes travel to childcare outside the home.
    • Insurance coverage was extended in the same way as for work in the company.

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Termination of the home office agreement through transfer: Important regulations and considerations

It is advisable to include a clause regarding the relocation of the workplace in a home office agreement. This provision gives the employer the option of permanently transferring the employee back to the office within the scope of their right to issue instructions. This may be necessary, especially if working from home does not produce the desired results or if certain circumstances require on-site attendance.

However, the order to return must be made within the scope of reasonable discretion. This requires a careful balancing of the interests of both employer and employee. The principles of proportionality, appropriateness, custom, and reasonableness must be taken into account (Federal Labor Court, decision of June 14, 2017, Ref. No. 10 AZR 330/16).

Termination of the home office agreement by revocation

It is possible to include a revocation clause in the home office agreement. However, whether the reasons for the revocation must be stated in the agreement has not yet been conclusively clarified. The Düsseldorf Regional Labor Court (LAG) has ruled that an unlimited and unconditional revocation option in pre-formulated contractual terms and conditions unreasonably disadvantages the employee and is therefore invalid (LAG Düsseldorf, judgment of September 10, 2014, case number 12 Sa 505/14). The court emphasized that in a unilateral order to change the place of work, the employee's interests must be appropriately considered.

Involvement of the works council in home office

The decision to introduce home office within the company rests with the employer. However, a change of workplace may be considered a transfer within the meaning of Section 95 (3) of the Works Constitution Act (BetrVG). In such a case, the consent of the works council is required in accordance with Section 99 (1) of the Works Constitution Act.

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