From July 1st, it is up to employers to decide whether they continue to let their employees do home office due to the ongoing Covid 19 pandemic or if they call them back to the office. Some companies want their employees back at the workplace as soon as possible. Saying it is best to have people together in person to foster collaboration and company culture. In its ruling of 26 August 2021, the Labour Court of Munich decided that an employer who had allowed his employee to do home office as a graphic designer is now entitled to change his instruction pursuant to the Trade, Commerce and Industry Regulation Act (Gewerbeordnung, GewO).
Employee wanted to stay in home office and had sued: The facts
In December 2020, due to the Covid-19 pandemic, an employer located in the Munich area made it possible for all employees to perform their work from home without having a formal agreement been concluded in this regard. The employee, who would later be the Plaintiff, worked as a graphic designer and took advantage of this home office option. He started working from home in December 2020. Only a very small number of employees remained in the office. In February 2021, the employer ordered the plaintiff to return to work as a graphic designer while being present at the office in Munich. The employee did not agree with this and applied for an interim injunction at the Munich Labor Court. He aimed forcing the employer to allow him to continue working from home. With his action, the employee wanted to achieve that he will be allowed to work from home all the time and only return to the office in execeptional cases.
Decision of Labour Court of Munich – return from the home office
The Labour Court of Munich (Landesarbeitsgericht) stated that the employer was entitled to re-determine the place of work by instructions while exercising equitable discretion. The place of work was not fixed at the plaintiff’s home, neither in the employment contract nor by virtue of a later express or tacit agreement between the parties. The right to perform the work from home had also not existed in February 2021 pursuant to § 2 IV SARS-CoV-2-ArbSchVO. According to the intention of the legislator, this provision did not convey a subjective right to home office work. The instruction had respected equitable discretion, since compelling operational reasons precluded the exercise of the activity at home.
Technical equipment in home office vs. company workplace
The technical equipment at the home workplace did not correspond to that at the office location and the employee had not shown that the data was protected against access by third parties. The general danger of contracting Covid-19 on the way to work and the general risk of infection at the place of work and during the lunch break did not preclude an obligation to appear at the office.
The judgement is final. Employees in Germany currently have no legal right to do home office.
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