Unilateral Orders for Employees to Return from the Home Office?

If an employer - also against the background of the Corona pandemic and the relevant occupational health and safety regulations - had allowed his employee to perform his work from home, can he then unilaterally order the return from the home office for operational reasons? The Munich Regional Labor Court had to decide on this.

Facts

The decision of the Munich Regional Labor Court is based on the following facts: The employee was employed full-time as a graphic designer. Since December 2020, the employees otherwise working in the office had been working at their respective places of residence on the basis of permission from the managing director, with the exception of the administration office, which remained present on site in the Munich office to a limited extent. By instruction dated February 24, 2021, the employer ordered the plaintiff to return to work as a graphic designer while being present in the office in Munich. With his action, the employee wanted to achieve permission to work from the home office and to interrupt this home office activity only in exceptional cases. The Labor Court rejected the application for a temporary injunction. A claim to work in the home office resulted neither from the employment contract nor from Section 2 (4) of the German SARS-CoV-2-Occupational Safety and Health Ordinance (SARS-CoV-2-ArbSchV). No obligation of the employer to exercise his right of direction in the desired manner within the framework of equitable discretion can be derived from Section 106 p. 1 of the Trading Regulations (GewO). The concretization of the duty to work was a matter for the employer. The general risk of contracting Covid-19 on the way to work and the general risk of infection at the place of work and during the lunch break would not preclude an obligation to appear at the office.

Reasons for decision

The Munich Higher Labor Court (LAG) confirmed this decision in its ruling of August 26, 2021, case no. 3 SaGa 13/21, and stated that the employer was entitled to re-determine the place of work by issuing instructions while exercising reasonable discretion. The place of work was not fixed to the plaintiff's home neither in the employment contract nor by virtue of a subsequent express or implied agreement between the parties. The right to perform the work from home had also not existed in February 2021 pursuant to Section 2 (4) SARS-CoV-2-ArbSchVO. According to the intention of the legislator, this provision does not convey a subjective right to home office. The instruction had respected equitable discretion, since compelling operational reasons precluded the exercise of the activity at home. The technical equipment at the home workplace did not correspond to that at the office location and the employee had not shown that the data was protected against access by third parties and the wife working in competition. The judgment of August 26, 2021, case no. 3 SaGa 13/21 is final.

Note for practice

In reaching its decision, the Munich Regional Labor Court follows established case law on the review of employer direction measures. First, it must be determined whether the right of direction is restricted or still exists, and if so, to what extent. If the disputed employer measure is within this scope, it must be examined at the level of the so-called exercise control whether the employer measure is in accordance with equitable discretion. In the present case, the courts of instance have affirmed this.

It is generally recognized that the employee's right to work from home does not arise from Section 2 (4) of the SARS-CoV-2-ArbSchVO.

In practice, affected employees can therefore only be advised not to disregard corresponding employer orders under any circumstances. This is particularly true in light of the fact that the Kiel Labor Court, in its ruling of March 11, 2021,6 Ca 1912/20, held that an extraordinary termination was justified because the employee had refused to work at the company, citing appropriate reasons.