1. LEGAL RIGHT TO HOME OFFICE OR MOBILE WORK?

The home office requirement expired on March 20, 2022. Although there is a draft law on mobile work, a reliable legal basis for regulating mobile work and home offices is still missing. In addition, this draft does not include a legal right to mobile working or home office.

The general requirements established by case law therefore continue to apply. According to this, employees have a legal right to work from home neither due to the employer's duty of consideration nor due to the fundamental rights protection of marriage and family. If there is no provision in the employment contract, the employer can do so within the scope of his right to give instructions (§ 106 GewO) determine the place of work at its reasonable discretion. A right to employment in mobile work or in the home office can therefore only be granted in exceptional cases § 164 Paragraph 4 SGB IX result. This would be the case, for example, if only working from home could be viewed as an activity involving suffering.

However, the reverse does not apply. The employer cannot transfer employees to work from home against their will within the scope of their directive rights (see Berlin-Brandenburg State Labor Court, judgment of October 10.10.2018, 17, Ref. 562 Sa 18/XNUMX). In the court's opinion, the circumstances of home office work differ significantly from work that has to be carried out in a permanent establishment.

2. TERMINATION OF HOME OFFICE OR MOBILE WORKING

The employer can unilaterally terminate the unilateral assignment of a home office workplace at any time. Such an instruction from the employer corresponds to reasonable discretion if compelling operational reasons prevent working from home (see Munich Regional Labor Court in an emergency decision dated August 26.08.2021, 3, Ref: 13 SaGa 21/XNUMX, which I also deal with in my seminar at the Beck Academy – Work 4.0, New Work, Agile Working-). The Cologne Regional Labor Court had already decided in an older decision dated June 24.06.2010, 9, Ref: 192 Ta 10/XNUMX) that the assignment of a home office activity "for the time being“Does not imply that the employer wants to make a long-term commitment.

CONCLUSION

From an employer’s perspective, it is advisable to create clear regulations. In a co-determined company, this can be, for example, a works agreement. In companies without a works council, however, it may make sense to include a transfer clause in the employment contract, which also includes home office work.