Working from home is not a less severe measure compared to a termination notice that changes the place of work

An employee whose place of work is to be changed by means of a change of employment notice does not have to be offered the option of working from home as a milder alternative. This was determined by the Baden-Württemberg Higher Labor Court (LAG BW) in its ruling dated November 4, 2024.

Facts of the case

In this case, the parties are in dispute about the validity of a dismissal for operational reasons. The plaintiff had been employed by the defendant since May 1, 2008 as a foreman for final assembly of cooling towers and shipping, most recently at the R site. Due to a business decision, the defendant decided to close this site. The affected employees were given notice of termination with change of contract, which provided for continued employment under unchanged conditions, but at the new location in D. (approx. 240 km away).

The plaintiff accepted the notice of termination with reservations, but demanded to be able to perform his work entirely from his home office. He argued that this was technically and organizationally possible and was based on previous practice, as he had regularly worked from home during the pandemic. The defendant rejected this with reference to its business decision and the existing organizational requirements.

The Villingen-Schwenningen Labor Court dismissed the claim. The LAG BW dismissed the plaintiff's appeal as unfounded. In its decision, it stated that the plaintiff was not entitled to full home office work and that the dismissal was therefore socially justified. The appeal was allowed.

Reasons for the decision

In its ruling, the LAG BW clarifies that the dismissal for operational reasons is socially justified, as the business decision to close the site resulted in the loss of the previous job. The defendant had offered the plaintiff continued employment at a different location under essentially unchanged conditions by means of the dismissal with notice of change. This was to be regarded as an appropriate and proportionate measure.

The LAG BW rejected the plaintiff's central argument that he should have been offered a job exclusively from the home office as a milder means of avoiding the dismissal with notice of change for the following reasons:

Based on the employment contract between the parties, there is no entitlement to work exclusively from home. This is because the employment contract did not provide for a fixed proportion of working from home. The fact that the plaintiff had sometimes worked from home 3-4 days a week in the past did not change this. This is because such home office work had previously only been granted on the basis of the employer's right to issue instructions and could therefore be revoked at any time.

The judgment of the LAG BW acknowledges the defendant's entrepreneurial decision: The defendant had deliberately decided against a complete home office arrangement, in particular due to the need for coordination with other departments, the management of employees and the lack of digitization of documents.

Because the plaintiff's work had previously consisted of a mixture of office and home office work, a workplace exclusively in the home office did not exist at the defendant.

The employer's discretion in exercising its right to issue instructions was also not reduced to zero: According to Section 106 of the German Trade Regulation Act (GewO), the employer is responsible for determining the place of work. The entrepreneurial decision was not an error of judgment; working from home was not the only reasonable option.

There is no obligation on the employer to create a new workplace in the home office in order to avoid a notice of dismissal. The entrepreneurial decision on the organization of work, including the determination of the place of work, falls within the company's freedom of organization. An entitlement to a home office only exists in exceptional cases, for example if the employee is particularly worthy of protection (e.g. for health reasons), which was not evident in the case in question.

Practical advice

The decision makes it clear that an employee does not have a general right to work from home, even if they have worked from home on a pro rata basis in the past. Employers have the right to determine the place of work at their discretion and can make home office arrangements within the scope of their right to issue instructions.

Clearly defined contractual regulations on working from home are recommended in order to avoid disputes about the scope and possibility of working from home.

Company decisions on work organization must be well documented in order to be able to justify the necessity of certain forms of work in a comprehensible manner in the event of a dispute.

Dismissals for operational reasons should take the employee's interests into account, but are not necessarily invalid if working from home is rejected as an alternative.

The decision of the LAG BW shows that an entrepreneurial decision to reduce or abolish home office workplaces can be legally valid as long as it is objectively justified. However, employers should check whether individual agreements or social aspects could justify an exception.