Not only since the Flexible Working Act entered into force in the Netherlands on January 1, 2016, working from a home office (or according to the legislative term: telework) has become a much discussed topic. Just recently, Annelie Buntenbach, board member of the German Federation of Trade Unions, called for a legal claim to the “location and time of working hours.” To this end, a new legal framework would be required, which would place “strong guardrails” against an “increasing dissolution of limits relating to working hours and availability expectations by employers.”
In fact, providing work in the form of a home office is considered a key example of the working environment’s increasing dissolution of limits, which – unlike Annelie Buntenbach’s demand suggests – is not classified in the negative sense as “degeneration” to employees’ detriment, but rather in the sense of flexibility with positive effects for both employees and employers. The positive elements for employees are initially supposedly easy to determine. Work within one’s own four walls, for example, means that the work commute – frequently a strenuous undertaking, particularly in urban areas – is no longer necessary. In addition, the home office in many respects offers the best conditions for coordinating work and family life. There are also advantages for employers in offering home office jobs. The setup eliminates – initially theoretically – the obligation to centrally provide cost-intensive infrastructures for employees to perform their work. In addition, international studies show that employees work more productively from home or on the road.
If all this is the case, the question arises as to why only one third of companies1 in Germany are generally prepared to offer employees the option of working from home, at least in part. One of the main reasons for this reluctance is probably that the change “in people’s minds” is progressing more slowly than today’s technical possibilities would allow. In a survey conducted by the Federal Ministry of Labor and Social Affairs, 69% of employees stated that they did not work from home because their presence at the workplace was important to their superiors. At the same time, however, 64% of employees surveyed responded that they themselves prefer to work in the company because they wanted strict separation of work and private life.
Irrespective of the – still – lacking mentality for more flexible work, the statutory provisions are not yet ready for the comprehensive introduction of such a legal claim. The biggest “obstacles” for employers are likely the regulations on occupational safety. According to its wording, Section 1(1) Occupational Safety and Health Act makes no distinction between different forms of work, but requires “safety and health protection” at “work” and applies “to all sectors of activity.” In connection with the home office workplace, the question arises as to how employers intend to ensure this in employees’ private homes. Section 4 Occupational Safety and Health Act specifies the employers’ obligation to guarantee occupational safety through suitable technical, organizational, or personal measures. In accordance with Section 5 Occupational Safety and Health Act, this is to be assessed on a case-by-case basis following a workplace-related risk assessment. It is easy to see that these provisions were drafted at a time when workers were doing their work without restriction at a workplace provided by employers on the employers’ premises. There is both an access deficit for employers, because Article 13 Basic Law prevents such access to the domestic workplace, and – caused by that access deficit – an information deficit for employers. This shows that the granting of home office work is not without risks for employers.
In addition to the spatial component, however, the home office also causes “problems” in terms of time. The Working Hours Act gives employers relatively strict instructions with regard to the maximum working hours (Section 3 Working Hours Act), breaks (Section 4 Working Hours Act), and rest periods (Section 5 Working Hours Act). For example, are employees forbidden under Section 5(1) Working Hours Act, according to which the rest period between the “end of working hours” and the start of work must be at least eleven hours, from writing an email in their home office at 11 p.m. when they usually start work at home at 8 a.m.? In nominal terms, the Working Hours Act would be violated in any event.
Finally, the legal problem of the home office concerns omnipresent data protection. Monitoring of employees at the workplace already poses hurdles in terms of data protection law. This is even more the case in the context of home offices. Data protection law also places special demands on employers, however. They must guarantee the data protection of employees as data controllers within the meaning of the Federal Data Protection Act when work is performed from home. When accessing employee data, special care must also be taken to ensure that such access does not invade employees’ private sphere.
At present, a legal claim of employees to home office work would probably come too early, both in factual and in legal respects. Such a claim does not seem to be intended by the legislator, anyway. The 2018 Coalition Agreement does not contain any corresponding provisions, but merely a declaration of intent, according to which a “framework [is to] be created in which companies, employees and the collective agreement partners can meet the many wishes and requirements in the organization of working hours.” It is not clear whether this means a legal framework that grants employees greater rights of co-determination or even self-determination – where the respective profession actually allows for that – with respect to the choice of workplace. At least for employers, the current legal situation makes the risk-free granting of home offices more difficult.