Today’s working world has realized that home offices can entail numerous advantages both for employees and for employers. This not only leads to the question of whether employees have a legal right to working from a home office (Legal claim to home office?), but courts recently also had to decide whether the employer’s right to issue instructions includes whether home office work could be mandated for employees (Berlin-Brandenburg State Labor Court, October 10, 2018, Case 17 Sa 562/18). In its ruling, the State Labor Court answered this question to the effect that the right to issue instructions under an employment contract in accordance with Section 106 Industrial Code did not also include the right to unilaterally obligate the employee to perform the work in a home office – which in the specific case was yet to be set up.

The matter before the court was based on a termination without notice issued by the employer. The employee filing the legal action, an engineer, was supposed to work from home following a plant shutdown. He was not prepared to do so, however, so that the employer had pronounced the termination without notice on grounds of “persistent refusal to work.” The State Labor Court, like the Labor Court in the previous instance, held the dismissal to be invalid. In the court’s opinion, the circumstances of telework differ significantly from work to be performed in a permanent establishment. The fact that employees may in principle be interested in telework, for example to better reconcile family life and work, would not lead to an extension of the instruction right under Section 106 Industrial Code.

Consequently, only explicit and legally compliant provisions in the employment contract offers employers the possibility of having employees perform their work from a home office either in whole or in part (“alternating telework”). Clear rules on the place of work and on working hours are important. It should be distinctly differentiated as to when work is to be performed from home or as “mobile work” or at the place of business. Such rules may also be flexible and may include agreements that the work is always to be carried out as telework, unless employers instruct employees to work at the place of business on certain days. Such a clause could, for example, read as follows:

“Employee shall perform the work at the employer’s place of business [...] on up to [...] days per week. The days of attendance shall be determined by Employer under its right of instruction with at least 4 days’ notice. Employee will, however, not be available for personal attendance at the following times: [...].“

This would directly use the employer’s instruction right arising from Section 106(1) sentence 1 Industrial Code. It is important to apply a sufficient period to the instruction right to sufficiently take the employee’s interests into account. The notification period of four days is based on Section 12(2) Act on Part-Time Work and Fixed-Term Employment Contracts and should be considered the minimum time. With respect to the location of the telework, for example within the setup of a home office, the following clause could be agreed:

“Where the work is not performed at Employer’s place of business, it is to be performed at a workplace to be set up at Employee’s home (external workplace). The external workplace shall be connected to Employer’s place of business by communication and information means. The external workplace shall be deemed attributed to Employer’s place of business at [...].”

To maintain the greatest possible flexibility as an employer, an ending clause in the employment contract is also an option. It could read as follows:

“Employer reserves the right to terminate the alternating teleworking model in full at one month’s notice effective at the end of a month, so that consequently the work is to be performed in full at the place of business to be determined by Employer. Only in cases where there are operational interests and Employee’s special interests have adequately been taken into account in the decision may Employer make use of such right. The work after completion of the model of alternating telework is to take place at material working conditions that are otherwise unchanged.”

In particular, such a clause is not based on Section 2 Dismissal Protection Act, as it merely restricts the employee’s place of work when exercised and therefore does not affect the core area protected under the Dismissal Protection Act (cf. Düsseldorf State Labor Court, September 10, 2014, 12 Sa 505/14). It is not even necessary to provide an example of the grounds for the employer’s decision (cf. Federal Labor Court, August 25, 2010 - 10 AZR 275/09).

Conclusion

Obviously, this is only one example of how to design an employment contract in connection with home offices, which has to be adapted to the individual case. The options are manifold and varied – in any event, it is important to have the contract drawn up professionally so as to avoid possible problems such as in the aforementioned case of the Berlin-Brandenburg State Labor Court.