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Right to unavailability during free time

Employees are not obliged to read text messages during their free time. This was decided by the Schleswig-Holstein Regional Labor Court in a ruling dated September 27, 2022 (Case No. 1 Sa 39 öD/22).


The judgment of the Schleswig-Holstein Regional Labor Court is based on the following facts: The plaintiff works as an emergency paramedic for the defendant. Due to a reference in his employment contract, the TVöD-VkA (Wage Agreement for Public Service) applies to the employment relationship. The TVöD-VkA stipulates that the defendant may under certain conditions change the duty roster of his employees at short notice.

According to his own statement, in two cases the plaintiff did not take note of such short-term changes to the duty roster in time and subsequently reported late for work. In each case, the defendant had only informed the plaintiff of the change to his duty roster with one day in advance – during his free time – by text message and e-mail; in addition, he had tried in vain to reach the plaintiff by telephone. The defendant regarded the plaintiff's late arrival on duty as unexcused absence and issued him first an informal admonition and then a formal warning letter. Besides, he made deductions from his working time account.

The plaintiff filed a complaint against this. While the Elmshorn Labor Court initially dismissed the action, the plaintiff was now successful on appeal before the Schleswig-Holstein Regional Labor Court. The defendant has already appealed to the Federal Labor Court.

Reasons for decision

The Regional Labor Court based its decision on the fact that the plaintiff had not been obligated to inquire during his free time whether his duty roster had been changed. He was also not obliged to accept a message from the employer – for example by telephone – or to read a text message. Insofar as the plaintiff did not take note of a change in the duty roster, he could only receive the information when returning to work. Therefore, the plaintiff was not in default with his duty to work at any time.

The change in the duty roster – as a declaration of intent requiring receipt pursuant to Sec. 130 (1) of the German Civil Code (Bürgerliches Gesetzbuch - "BGB") – becomes effective upon receipt. The defendant had not been able to prove that the plaintiff had received the notification of the change in the duty roster. He also could not have expected the plaintiff to take note of it during his free time. By reading a text message, with which the employer concretizes his instruction right with regard to the time and place of work, the plaintiff performed a work task.

The plaintiff was not obligated to do this outside of his working hours as he had the "right to unavailability" during his free time. Free time was characterized precisely by the fact that employees did not have to be available to employers during this period and could decide for themselves how and where they spent their free time. It was one of the most noble personal rights that a person could decide for himself/herself for whom he/she wants to be available or not during this time.

Notes for practice

Especially in times when the boundaries between work and private life are becoming increasingly blurred due to the triumph of the "home office", the present decision is highly topical. To ensure the protection of the plaintiff's free time, the Schleswig-Holstein Regional Labor Court outlines a "right to unavailability" in a legally comprehensible manner. Such a right to "digital disconnection" has already been enshrined in law in neighboring France since January 2017 and was recently also the subject of a legislative initiative in the EU Parliament. In Germany, the issue has not yet been addressed by the highest court; all the more reason to eagerly await whether the Federal Labor Court will confirm the employee-friendly case law in the currently pending appeal proceedings (Case No. 5 AZR 349/22).

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