Some people work in an office or factory, others from a home office. For many, a home office provides flexibility, but it is also seen as a non-monitored zone because employers cannot readily check on work being carried out. The issue of whether employees can demand that their employers allow them to work from home is becoming increasingly relevant and employers are repeatedly denying their employees the opportunity to work from home – but is this right?
Following one recent decision, employers rights and duties have become much clearer.
A female employee worked in Saarbrücken. Following a company reorganisation she agreed with her employer to work in Mainz (a 150-kilometre commute). During parental leave the employee lodged an application with her employer to work part time from Saarbrücken or for the employer to approve a request for her to work from home. The employer agreed to the part-time position, but not to working from Saarbrücken or from home. As a result, the employee filed a claim.
Both the Labour Court and the Hesse Regional Labour Court (5 Sa 378/14, December 18 2014) dismissed the claim. The Hesse Regional Labour Court ruled that the employee was not entitled to work from home.
The employer failed to exercise its right to determine work content, location and time according to the Trade, Commerce and Industry Regulation Act. However, employers have a duty of care to employees and, where appropriate, are obliged to issue instructions in order to make work possible for employees should they no longer be able to work. Employers must review whether working conditions need to be changed and take any necessary steps at their own discretion.
However, in this case the court saw no duty by the employer to grant the employee the opportunity to work from home.
Although the employee had good reasons why she needed to be in Saarbrücken near her family, the employer also had grounds for why she should work in Mainz. Added to this was the fact that the employee had refused to move house following the change of workplace from Saarbrücken to Mainz. The fact that, from the employee's perspective, it was impossible for her to work in Mainz was attributable to her decision not to move house. Therefore, she could not demand that her employer reorganise its operations in accordance with her wishes.
In principle, employees are not entitled to work from home. Employers therefore need not fear that in future, every employee wishing to work from home will have the right to do so.
However, in certain circumstances employees can demand that employers make decisions at their own discretion in respect of a request to work from home. In such cases, an employee must have good reasons as to why he or she needs to work from home. The employer must weigh the employee's reasons against its operational concerns.
Employees who themselves create situations where working from their former established place of work is time consuming, is difficult or results in separation from their family cannot demand to work from home.
Employers are advised to ensure that any decision is taken with "reasonably exercised discretion".
For further information on this topic please contact Martin Lützeler or Manuel Evertz at CMS Hasche Sigle by telephone (+49 221 77 16 305) or email (firstname.lastname@example.org or email@example.com). The CMS Hasche Sigle website can be accessed at www.cms-hs.com.
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