Home office:

It can be agreed between the employer and the employee that the employee may not or not exclusively perform his work in the employer's company, but from home.

There is no general statutory entitlement for employees to work from home. This also applies during the special situation in the corona pandemic. It is up to the employer alone to decide how to meet their obligations, in particular with regard to their care and protection obligations under Section 618 of the German Civil Code.

The employer also has no legal recourse to unilaterally order his employee to work from home. If the employment contract provides for work in a specific company owned by the employer, the employer's right of direction is set a limit in terms of the place of work pursuant to § 106 sentence 1 of the Industrial Code. The employer's right of direction does not entitle him to deprive the employee of direct contact with his colleagues and the opportunity to exchange ideas with them. Otherwise, the boundaries between work and leisure would become blurred. The employee would be difficult to reach for the company interest group (the works council) or for the trade unions represented in the company (cf. judgment of the Berlin-Brandenburg State Labor Court of November 14, 2018, Az: 17 Sa 562/18).

Refusal to work from home by the employee:

The question of whether the employee is entitled to default wages under § 615 sentence 1 BGB if he refuses to work from home due to the corona pandemic is controversial. This question will depend on the circumstances of the individual case. Insofar as it is reasonable for the employee to work from home, his entitlement to default wages in accordance with § 615 sentence 2 variant 3 BGB could possibly lapse if he can be accused of malicious omission of the purchase within the meaning of this provision.

Home office agreement:

However, an agreement can be reached between the employee and the employer about working from home. The agreement must contain regulations on the place of work. A regulation on working hours in the home office should also be made. With regard to the duration of the working time, there are no special features, insofar as these are already specified in the contract. The location of the working hours could be regulated for a home office activity according to different design variants. For example, fixed times can be agreed on (certain) days of the week or work in the home office can be arranged freely by the employee (so-called trust-based working hours). Of course, the limits of the Working Hours Act must also be observed when working from home.

Bearing of costs:

Without a corresponding agreement, the bearing of the costs for a home office workplace depends on the fact in whose interest the establishment of such a workplace lies. If this is in the interest of the employer, since he saves on purchasing office equipment, maintenance and care of communication equipment, etc., the employer must bear the costs of setting up a home office workplace even without a corresponding contractual arrangement. In this case, the employee is entitled to reimbursement of expenses against the employer with regard to the costs incurred by himself in accordance with § 670 BGB (cf. judgment of the Federal Labor Court of October 14, 2003, Az: 9 AZR 657/02.

Employer access rights.

Access rights for the employer are necessary because the employer is prohibited from entering the employee's private apartment without the employee's consent due to the protection of fundamental rights from Article 13 (1) of the Basic Law. Under certain circumstances, however, the employer may have a legitimate interest in inspecting the home office workplace and checking whether the workplace meets the statutory requirements for occupational safety and health. For this reason, a home office agreement should also include regulations on the employer's access rights and on the group of people to whom access rights are to be granted.

Compliance with data protection by the employee:

In order to comply with data protection in the home office, the employee should be expressly obliged to prevent unauthorized third parties from accessing personal data. It may be necessary for the home office to be set up in a separate and lockable room and for the employee to be obliged to keep the room locked after leaving.

If you have any questions about working from home, contact our law firm and arrange one meeting

or call us on the phone number02366-94066 02.