Germany: Employers can order Employees to Return from Working from Home
Many employees still work from home due to the pandemic. This was also the case at a company from Munich, where almost all employees were working from home since December 2020. In February 2021, the employer ordered an employee who was employed as a graphic designer to return to work at the office. However, the employee was of the opinion that he could continue to work at home and only had to come to the office on special occasions.
Like the lower court, the regional labor court of Munich confirmed that the employee had to return to the office on the basis of the employer’s work instructions. An entitlement to work from home neither arose from the employment contract nor from the applicable Occupational Health and Safety Regulation. It is the employer’s right to specify the conduct of work. Accordingly, the employer can determine the place, time and content of work. Restrictions may only result from collective agreements, employment contracts or the principle of reasonable discretion.
In the case at hand, the employer was allowed to designate the office as the “new” place of work. The risk of a Covid-19 infection on the way to work, at the workplace, and during the lunch break, does not hinder the employee from working at the office at the employer’s instructions. In the present case, the place of work was not limited to the employee’s home by any agreement. Furthermore, there is no general legal right to work from home under German law.
Hence, the employer could order the employee to return to the office. The principle of reasonable discretion did not preclude this either. As the employee’s technical equipment at home did not correspond to the one at the office, the employer had operational reasons to instruct the employee to return to the office for work. Furthermore, the employee did not show that employer data was protected against access by third parties at his home despite his wife working for a competitor of his employer.
Key Action Points for Human Resources and In-house Counsel
If employees work from home during the pandemic that does not mean the employer cannot ask them to return to the office. However, the employer’s right to do so might be restricted due to contractual agreements or the principle of reasonable discretion. Due to the duration of the pandemic situation and its continuation, we strongly recommend that employers regulate working from home and its terms and conditions in writing. In particular, the circumstances for the return to the office should be agreed to prevent unnecessary controversies.