Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The child is ill, an important delivery is expected “between 8:00 a.m. and 7 p.m.” or the car has to go to the garage. What could be more natural than working from home? A quick email to the employer that you will work from your home office in the morning and be in the office in the afternoon and the problem is solved. But it’s not always that simple. The following is a brief overview of the legal situation in Germany.
When is a home office a home office?
The discussion about mobile working shows a fundamental error in the terms used. An activity in a “home office” only exists if the employer sets up a fixed workplace for the employee outside the company and the employee works from there. “Mobile work,” on the other hand, is when the employer allows the employee to perform work outside the company without setting up a fixed workplace. Mobile work can therefore be considered for activities in which the employee does not need more than a laptop or other “mobile” work equipment. This mobile work is not limited to a specific place outside the workplace, but can be done anywhere (e.g., in a café or on business trips). In practice, it is more common for employees to be engaged in “mobile work” than to be working from a “home office.” In Germany, therefore, it is more appropriate to speak of “mobile work.”
Can employees decide for themselves when to work from home or be mobile?
No. In Europe, there is (currently) no legal entitlement to “home office/mobile work” other than in the Netherlands. The employee may therefore only work from home or remotely if this is permitted either under an employment contract, a company agreement or on a case-by-case basis approved by the employer. If employees stay at home without being allowed to do so, they risk a warning. If employers make it possible to work in the home office or remotely, it normally is good practice to require that employees understand they must be present in the company for operational reasons (e.g., to attend meetings).
Can the employee determine his or her own working hours in the home office?
No. Mobile work is only about changing the place of work and not about additional free time (New Work does not mean No Work). “Mobile work” is not in itself a working time model. The employees must therefore perform their work to the same extent and of the same quality as if they were working at the company’s location. An activity from home should therefore not be confused with half a day’s holiday or compensatory time off. Those who want to work on the move should therefore ask themselves whether they are able to reconcile the newly gained (local) freedom with the demands of the profession. If the reason for remote work is to better achieve a work/family life balance, there is the risk that doing so does not do justice to either the child or the employer. What if the employee is waiting for the delivery service? Even then, the employee still must be able to perform his or her contractual duties, for example, by being available for a telephone conference. As a rule, these dilemmas are therefore not solved by regulations on mobile work, but only by flexible working time models which—as agreed to by the employer—provide for compensatory time off. In practice, for example, working time accounts have been established for this purpose. As an aside, if a child falls ill, the employee has the right to stay at home anyway—without having to work at the same time—in compliance with the legal requirements under German Labor Law.
When I work remotely, I can work as I like?
An advantage of mobile work is that employees often can better combine their professional and private interests. For example, an employee could work from 6:00 a.m. to 4:00 p.m. in the office, spend the next two hours at the gym, go home and work an additional two hours catching up on email until 8:00 p.m. There are some points to consider: In addition to the question of whether the employee may work “flexibly” from home at all, the work activity performed at home also must be in accordance with the regulations governing working hours. In the above example it makes no difference whether after the gym the employee drives back to the office or home to work. According to the Working Time Act, the following applies under German Law:
- The total working time in the workday may amount to at most 8 hours. It can be extended to up to 10 hours if this difference is compensated within 6 months or 24 weeks. This maximum limit of 10 hours of daily working time may not be exceeded even for mobile work.
- After the end of the maximum working day, the employee must observe a rest period of 11 hours. By collective agreement, this rest period can be reduced to nine hours, which is already used in Tariff Agreements for the metalworking industry.
- Break times must also be observed during mobile work. They may not simply be deducted by the employer, nor may they be taken at the beginning or end of working hours. Breaks serve as the employee’s rest periods between work hours.
Just briefly checking an email
But how does this work in practice? In our example, the employee’s working time ends at 8:00 p.m. so that he could return to work at 7:00 in the morning. So far, so good. But what happens if the employee receives an email at 1:00 a.m. and reads and processes it? If the reading of the email is “working time,” this means the 11-hour rest period would shift accordingly. But when is “work” within the meaning of the Working Hours Act? Jurisprudence assumes that work occurs when the employee performs an activity for the employer (i.e., for the benefit of others) and is burdened in a certain way. However, the Working Time Act does not provide for a time or content threshold of insignificance. And let’s be honest: Everyone knows that a 2-line email can trigger work responsibilities for an extended period. The actual question to be asked is therefore whether the employee has to read (and answer) this email at all. On the one hand, this is a legal question, namely the subject of the contractual and company regulations. Is the employee expected to read emails from the employer at certain times, thereby making it a question of on-call duty (subject to remuneration)? On the other hand, it is a management issue. Does the manager expect employees to be available for the employer in the evening? This is where the actual need for regulation lies.
Out of sight out of mind
Another widespread misconception is that employers can “get rid” of their obligations, especially under the Working Hours Act and the Labour Protection Act, if they allow their employees to work on the move. This is as wrong as it is dangerous:
- Working time: The employer is responsible for complying with the provisions of the Working Time Act even if the employee is not bound to a specific location. The employer must create the organizational prerequisites to ensure that the provisions of the Working Time Act are complied with, e.g., breaks and rest periods. The employer must also record and control the working time exceeding eight hours in the case of a location-independent activity. The employer, however, can delegate the recording of time to the employee. If the employment relationship is marginal employment (i.e., the employee does not earn more than EUR 450 per month), the employer must even record the beginning and end of the working time. Violations of the Working Hours Act can result in substantial fines and also entitle the health and safety authorities to issue orders to record working hours.
- Occupational health and safety: The distinction between home office and mobile work is particularly relevant for occupational health and safety. If the employer sets up a home office, it ensures that this workplace meets the requirements of occupational health and safety standards. For this purpose, the employer must carry out a so-called risk assessment when setting up this workstation for the first time, i.e., identify and eliminate risks in the home office. As an aside, employers are not permitted to enter the employee’s home without consent.
Crashed making coffee
And what about accident insurance if the employee suffers an accident in the home office or during mobile work? According to case law, an accident in the home office is only insured if there is an internal connection between the event leading to the accident and the operational activity. According to the courts, the intended action of the insured person is essential for the assessment of this question, i.e., whether the insured person wanted to perform an activity serving the employer in the specific case and whether this intended action is confirmed by the objective circumstances of the individual case. Walking up the stairs to a home office is a regular activity associated with work, so therefore a fall would likely be covered. Making coffee, on the other hand, is not. When in doubt, the employee must prove that an insured activity existed. For this reason, it is advisable either to include employees in an employer’s group accident insurance policy or to recommend that employees take out private accident insurance that also covers accidents in the home office or during mobile work that are not covered by statutory accident insurance.
The wastepaper basket as a data leak
Last but not least: Data protection does not stop at the company door. Particularly when setting up a home office, the employer must ensure data security through a data protection / IT security concept that also provides for suitable technical and organizational measures (TOM). These include, for example, the employee’s obligation to keep lockable cabinets ready, to log on to the Internet only via VPN or tunnel solutions and not to store passwords in a freely accessible manner. As banal as it sounds, this means ensuring that printouts with sensitive company information not wind up in the home office’s or café’s trash. In some cases (perhaps obviously), it may be appropriate to mandate shredding of sensitive documents. The extent to which there is a particular need to create greater awareness among mobile workers of the problem of the confidentiality of company information can be seen regularly on train journeys when employees work on laptops without privacy, or make uncensored and noisy business telephone calls or hold conversations with colleagues travelling with them.
As noted above, in Germany, employees do not enjoy a legal right to work anywhere they please. And it may come as a surprise, but employees in Germany rarely even talk about mobile working anymore, but rather about flexible working time systems and the management culture in the company. In this environment, companies can and should create solutions that meet both their operational requirements and, to the extent appropriate and feasible, the wishes of the employees.