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Returning from Home Office - What Employers Have to Consider 

by Eva Kettner, LL.B.

Published: August, 2020

Submission: August, 2020

 



When the corona pandemic broke out, many employers allowed their employees to work in home office or even forced them to do so. In the meantime, many uncertainties have been clarified and the desire for normality is increasing among both employers and employees. Therefore, in the following, we will describe what employers must take into account when employees return from home office.


1. CAN THE EMPLOYER INSTRUCT EMPLOYEES TO RETURN TO WORKING EXCLUSIVELY IN THE COMPANY‘S OFFICE WITH IMMEDIATE EFFECT?


If at the beginning of the pandemic the question arose whether the employer could order employees to work from home (see www.heuking.de/en/news-events/articles/coronavirus-faq-employment-law.html), the question now arises from a different perspective: Can the employer demand that from now on, employees work exclusively in the company‘s office again?


As still - and despite the corresponding political discussion - employees are not entitled to work from home, the answer depends in particular on whether and, if so, what agreement was reached at the beginning of the home office.


If a detailed agreement has been reached - either with the individual employee or with the works council - its provisions must be complied with. It is possible that the agreement entitle the employee to work from home regardless of the Corona pandemic. In particular, agreed notice periods must often be observed.


Due to the pandemic, many employees may have moved their workplace to the home office without a separate agreement. Even though such behaviour was welcomed and in some cases even demanded by many employers, employees cannot derive any entitlement to continue working from home. The employer can still give directions according to § 106 GewO with regard to the place of work. The place of work has not been fixed to the home office by a few weeks or months. Also a claim of the individual from operational practice („Betriebliche Übung“) is excluded. Accordingly, an employer can demand the return to the company‘s office in accordance with § 106 GewO and only shall respect a reasonable notice period.


If, on the other hand, the employer continues to authorise a part of the employees to work at home and only requires the other part to return to the company‘s office, there should be objective reasons for this different treatment. Otherwise, the employees could demand working at home based on the principle of equal treatment.


2. WHAT MEASURES IN THE COMPANY‘S OFFICE MUST THE EMPLOYER TAKE TO PROTECT ITS EMPLOYEES AFTER THEIR RETURN FROM HOME OFFICE?


The employer has a special duty of care towards his employees, § 618 BGB. Currently, he must therefore pay particular attention to protecting employees in the company’s office from infection. To this end he must take appropriate measures. In particular, the employer must comply with the respective requirements of state law as well as the nationally applicable "SARS-CoV-2 Occupational Safety and Health Standard". This means above all that the employer must reorganise his work organisation in such a way that the recommended minimum distances can be observed (details of the requirements).


Especially when planning to have the employees return from home office, employers should make sure to meet this standard. Otherwise the employees could legally refuse to comply with the order and thus extend the time in home office against the employer's will.


3. CAN THE EMPLOYER RECLAIM ITEMS PROVIDED FOR USE IN HOME OFFICE?


If the employer has provided his employees with work equipment that was only necessary for working at home (e.g. laptop, mobile phone), he can reclaim it after termination of the home office agreement. The employees can now use the equipment available in the office again.


However, employees could claim to keep the work equipment if the employer had also allowed private use. The withdrawal of the work equipment would then de facto reduce the remuneration.


4. SHALL THE WORKS COUNCIL BE INVOLVED?


If there is a works council in place, various co-determination rights can be considered.


For example, the individual order to return to the company‘s office could include a transfer according to § 99 BetrVG, which would require the works council's consent. Also a participation in accordance with § 87 Sec. 1 No. 1 and No. 7 BetrVG may be necessary. The introduction of the various protective measures may affect the organisation in the offices and represent in each case a regulation of the health protection. Finally - depending on the extent of the necessary changes in the company - a co-determination right according to § 111 BetrVG is possible as a fundamental change in the organization of the company cannot be excluded.


However, the works council has no right of co-determination insofar as the employer solely implements mandatory legal provisions - such as the Corona Protection Ordinances.


5. WHAT HAPPENS IF WORKING AT HOME HAS PROVEN TO BE EFFECTIVE AND EMPLOYERS AND EMPLOYEES WANT TO CONTINUE THIS - AT LEAST PARTIALLY - EVEN AFTER THE PANDEMIC?


In order to ensure that the interests of both parties are preserved and to provide clarity for the future, employer and employee should conclude a supplementary agreement to the employment contract. In particular, such agreement should make clear when the employee can work at home and when he/she must come to the company‘s office or how data protection and occupational safety can also be maintained in the home office.


 



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