Written by: Lisa Ryßok Lösch, Kliemt.HR Lawyers
Employees increasingly expect, and employers increasingly use, various flexible forms of work, particularly in the wake of the COVID-19 pandemic. But ensuring this runs smoothly is not always easy: clear dos and don’ts can help avoid misunderstandings and conflict.
Agile work structures and modern forms of ‘whenever and wherever’ working demand a high degree of flexibility in working time and place. So far, legislators have only dealt with these issues in a rudimentary way, which is why there are wide range of models in practice. However, where these arrangements are disadvantageous for employees, especially with regard to general employee protection, they can lead to litigation and risks for employers.
This is a challenge not only for labour lawyers, but also for HR staff. The following overview of the dos and don’ts should help in finding the right tools to deal with the compliance challenges when setting up and ending mobile working.
Drawing the line
The terms ‘teleworking’, ‘home office’ and ‘mobile working’ are often used synonymously in Germany. However, since a closer look reveals partly different legal consequences, it is important to clarify which form of work applies to an employee. Where an employee is teleworking the employer must comply with the full catalogue of duties imposed by occupational health and safety regulations, while mobile working is possible with a much greater degree of freedom.
But what exactly is meant by a ‘telework site’ (telearbeitsplatz)? According to s2 paragraph 7 of the Workplace Ordinance (ArbStättV):
‘Telework sites are computer workstations permanently set up by the employer in the employee’s private space, (…). A teleworking workplace is (…) set up if the employer and the employee have stipulated the conditions (…) in the employment contract (…) and the required equipment for the teleworking workplace with furniture, work equipment (…) is provided and installed in the employee’s private space.’
The term ‘home office’, on the other hand, is not defined by law. In general, it is understood to mean an activity that is basically carried out off the employer’s premises, typically from the home workplace, but without the employer having set it up and equipped it.
‘Mobile’ (remote) work (mobile Arbeit) follows different rules. Here, the employer merely instructs the employee to perform his or her work temporarily at a largely arbitrary location ‘outside the office’ using mobile work equipment. Working from a variety of conceivable workplaces (e.g. on the train, in a café, in a park), largely independent of location, where the employee decides autonomously where to perform his or her work, is predominantly referred to as ‘mobile work’ (Mobile Arbeit) or ‘mobile office’ (Mobile Office). This is specifically not ‘home office’ work, where the work is only performed from the employee’s home.
Ending mobile work
For mobile work, there are important labour law provisions that must be observed when implementing it. This is because the employer is obliged to ensure that regulations on occupational health and safety, data protection or working hours are observed; otherwise, fines may be imposed.
Mobile work, for example, places high demands on data security and IT infrastructure. With the COVID-19 pandemic, compromises in IT security were accepted that previously would not have been approved due to their risks. Nevertheless, the employer remains obliged to implement appropriate precautions and to ensure that the data protection requirements are permanently met by the employee during his or her employment. These rules can and should be laid down in a supplementary agreement.
If the employer wants to keep open the possibility of unilaterally terminating permission for mobile working at some point, the contract needs to be carefully worded. If employees continue to work after the expiry of the statutory home office obligation without explicit agreement, there is a risk that a claim could be established that it is a company practice. Therefore, if employees continue to work on a mobile basis, an agreement with an appropriate termination option should be concluded, if this has not already been done.
Since the employer is also subject to other legal obligations (e.g. compliance with the regulations on working hours and occupational health and safety), we recommend concluding a supplementary agreement to the employment contract and incorporating these provisions into a comprehensive agreement on mobile working.
Training managers and communication
Managers should be trained in dealing with mobile work, as they are particularly in demand when conditions are changing or in a state of flux. This is because physical distance makes communication more difficult: minor queries and conversations can no longer done with a trip to the neighbouring office. Moreover, impersonal contact (e.g. by email) can lead to misunderstandings. What helps against this? Lots of communication! Team leaders or managers can, for example, set up daily or weekly ‘surgeries’ or weekly office hours where all open questions can be discussed in one go. It also helps to simply pick up the phone or use the video chat function.
Involving the works council
Finally, at the collective level, in view of the works council’s potential participation and co-determination rights, especially if mobile working agreements are concluded more frequently, it seems sensible to regulate mobile working activities as a whole by means of a works agreement.
The first step organisations wishing to offer more flexible forms of work should take is clear and good drafting of contracts. As a second step, the actual implementation of the contractual relationship is decisive. In addition, HR staff and management should be trained in how to establish effective rules for mobile working on the one hand and how to communicate with a virtual team or eliminate uncertainties on the other. Management must also pay particular attention to ensuring that the key aspects mentioned above (including occupational safety and data protection) are observed in practice. In order to reduce risks, clear dos and don’ts are helpful at all levels in an organisation.