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23 September 2020
Home office versus mobile working – what is the difference?
No entitlement to remote working
Information and consultation and codetermination obligations
Employer obligations and items to consider
In response to the health and safety risks resulting from a potential COVID-19 outbreak in the workplace, many employers moved to home office or mobile working arrangements earlier in 2020. For many companies, this has now proven to be a successful new way of working. Employees turn out to be more productive and companies can reduce office space and costs. This article describes the labour and employment law aspects of the implementation of home office and mobile working arrangements. It also includes a list of items that employers should consider when facilitating a remote work model.
One of the central questions is what difference is there between home office and mobile working. In both cases, employees work remotely outside of their employer's company office. Home office work (also called working from home) means that the employer sets up a fixed workplace for the employee outside of its company premises. If employees switch between a home office workplace and the company office, this is called alternating home office work. If the terms and conditions of the home office work arrangement are determined in an agreement between the employer and employee and the provision of necessary office equipment and phone lines is the employer's responsibility, home office work qualifies as so-called 'telework' in accordance with Section 2(7) of the Workplace Ordinance (ArbStättV). Telework is subject to a more specific set of health and safety at work rules under the ArbStättV.
Unlike in a home office set-up, in a mobile working scenario employees do not work from a fixed place but can freely choose and switch between different locations such as their home, a customer's office, a coffee shop, a shared working space, a hotel room or lobby or a train or plane.
Another concept that is often mentioned in connection with home office and mobile working is desk sharing. Desk sharing means that several employees share a certain number of desks (eg, by working at different times) in a business organisation. While this may trigger specific questions from health and safety, working time and confidentiality points of view, desk sharing itself does not represent a type of remote working. It can play a role in employment models with alternating workplaces where employees rotate between remote and on-site workplaces.
Home office and mobile working is not for everyone. Some jobs cannot be performed at an employee's home or in any other way remotely. This may result from the activity itself (eg, farm work or work in a shop or large production facility). It may also be impossible due to limited space at the employee's home, the lack of a strong enough internet connection or confidentiality concerns. The suitability of a job and the intended work location must be assessed upfront. Home office and mobile working are not exclusive. There may be situations where employees work partly from a home office and partly mobile.
Home office work and mobile working arrangements can be implemented in different ways.
Most common and highly recommended is the conclusion of a home office or mobile working agreement between companies and employees, either at the time of hiring or later as an amendment to an existing employment contract. For evidentiary purposes, a written agreement on the specific terms and conditions of home office work is preferable over a purely oral arrangement.
In other situations, a works agreement or collective bargaining agreement may set out the general terms and conditions for home office or mobile work, which can be referenced in a short agreement between the company and the employee. At a minimum, where collective agreements or company policies define the terms and conditions of home office or mobile work, such collective agreements or policies should be acknowledged by the employee in writing.
Eventually, there may be situations where employers unilaterally instruct employees to work from home or at a place of the employees' choice and no agreement is in place at all. This has been highlighted especially during the COVID-19 pandemic, as many companies had to take a pragmatic approach and asked their employees to work from home literally from one day to another without having the time to produce policies or agreements.
Unless the place of work is already defined in an employment contract, a collective agreement or otherwise, Section 106 of the Trade Regulations (GewO) generally allows employers to determine the place of work unilaterally using equitable discretion. At the same time, an employee's home enjoys special protection pursuant to Article 13 of the Constitution, which under normal circumstances precludes an employer from instructing employees to work from home. In a pandemic, on the other hand, employers have more far-reaching obligations to mitigate health and safety at work risks and protect employees. This applies even more with respect to employees belonging to a high-risk category. In addition, employees have their own statutory obligation to protect their health and safety at work. Taking all of this into account, if health and safety cannot be sufficiently guaranteed in the company workplace, instructing an employee to work from home may be an equitable decision.
If the place of work is already contractually defined, a unilateral instruction to work from home is not permitted under Section 106 of the GewO. However, it is widely accepted among legal experts and the courts that in exceptional or emergency situations, employers' right of direction is extended. Employees may have a contractual side obligation under their employment contract to tolerate their employer's instruction to work from home or from any other location of the employees' choice until the exceptional or emergency situation is resolved.
Several collective bargaining agreements for certain industries and sectors have already been concluded or are in the making. For example, in the metalworking industry there has been a collective bargaining agreement on mobile working since 2018 that includes framework provisions and applies whenever companies in the metal and electro industry agree with their works councils to implement mobile working. The collective bargaining agreement includes special provisions such as the exclusion of premiums for overtime or working late hours or at night whenever employees have the flexibility to determine their work hours individually. Another modification is the shortening of the rest period between two daily work cycles from 11 to nine hours.
There is consensus that employees are not automatically entitled to work from home or remotely. This is different, for instance, in the Netherlands, where employees with a certain minimum tenure have a general right to work remotely and employers can reject remote working requests only if there is a good reason. In Germany, the statutory implementation of a similar right to work from home has been discussed by politicians and certain interest groups for some time. The debate received a push recently when Federal Minister of Labour and Social Affairs Hubertus Heil announced plans to present a draft law by Autumn 2020. While unions and the political left are highly supportive of the initiative, employers have voiced their concerns. Especially post-COVID-19, it would be extremely important that employers retain full flexibility and decide what is best to get the struggling economy up and running again. A statutory obligation to facilitate remote working could therefore be counterproductive.
Despite the lack of a general entitlement to work remotely, under rare circumstances employees can refuse to work from a company workplace and perform their work from home or elsewhere. This may apply, for instance, if the employer materially fails to implement necessary safety standards in response to a pandemic (eg, the technical, organisational and personal measures recommended by the Federal Ministry for Labour and Social Affairs (for further details please see "COVID-19: back to business after lockdown guidance for employers")).(1)
Another question is whether, post-COVID-19, employees could eventually argue that having lived through several months of home office and remote working initiated and tolerated (or expected) by their employer, they should be able to rely on a company practice that permanently permits remote working. However, for a company practice to be established, circumstances must exist based on which employees can develop trust and a legitimate expectation that a certain right (eg, the right to work remotely) will be unconditionally granted going forward. Since the implementation of remote working models in recent months was clearly driven by the immediate threats of the pandemic, it cannot be expected that a court will see any basis for company practice here. This view may change if companies continue to allow remote working once the COVID-19 pandemic has officially ended.
In companies with works councils, employers must be aware of certain information and consultation rights that must be observed before implementing home office or mobile work. The decision to implement a home office or mobile working arrangement is not subject to codetermination and works councils have no right to force employers to facilitate remote working. However, once the employer takes the initiative, the following information and consultation obligations under the Works Constitution Act (BetrVG) could be relevant.
Section 80(2) of the BetrVG gives works councils a general right to be provided with the necessary information and documentation for them to perform their statutory tasks under the BetrVG, including monitoring employers' compliance with laws and collective agreements which exist for employees' benefit. In the context of home office and mobile work, laws on the protection of health and safety at work might be particularly relevant.
Pursuant to Section 90(1) of the BetrVG, employers must inform works councils during the planning stage of changes to:
Section 90(2) of the BetrVG extends this obligation to consulting with the works council on such topics before any changes are implemented.
Consultation and codetermination obligations
Section 87(1)(1) of the BetrVG requires the works council's codetermination if, for instance, the remote working policy establishes certain rules of conduct or defines an access or control right for the employer.
Section 87(1)(2) of the BetrVG is relevant if the remote working policy includes rules on working time, including with regard to:
Section 87(1)(6) of the BetrVG gives works councils a codetermination right whenever a remote working arrangement uses hardware or software that can monitor employees' behaviour or performance.
Section 87(1)(7) of the BetrVG triggers a codetermination right with respect to health and safety measures at work.
Section 87(1)(10) of the BetrVG can be relevant if employees who work remotely are entitled to special compensation and benefits.
Sections 95 and 99 of the BetrVG requires employers to obtain the works council's approval before an employee is assigned to a remote working model; if the works council does not approve the assignment, the employer may have to ask the labour court to approve the measure instead.
Section 102 of the BetrVG may be relevant if the change to a remote working model is not amicable but must be implemented by way of a termination for a change of conditions. Employers must inform the works council of the planned termination no later than one week before notice will be given.
Section 111 et seq of the BetrVG may trigger an obligation for employers to negotiate a reconciliation of interests and a social plan if, for instance, the implementation of a remote working model:
Other information and codetermination rights are unlikely to be triggered, such as Sections 92 (personnel planning), 92a (safeguarding of jobs) and 93 of the BetrVG (internal posting of vacancies).
Whenever employers implement or operate remote working models, they must not only inform or consult with their works councils, they must also comply with a number of other legal obligations.
Health and safety
Employers' obligations under health and safety at work laws apply with certain modifications in remote working settings. Employers must take necessary measures to ensure or at least improve health and safety protection at work (Section 3 of the Health and Safety at Work Act (ArbSchG)). Work must be structured in a way that hazards to life or physical and psychological health can ideally be avoided; remaining hazards must be kept at a minimum (Section 4(1) of the ArbSchG).
Employers must carry out risk assessments in accordance with Section 5 of the ArbSchG. The aim is to identify potential health and safety hazards taking into account the specific circumstances of the individual workplace. Employers' ability to perform such a risk assessment in a remote working environment is naturally limited. In a home office setting, employers can perform the assessment directly only if a right to access employees' homes has been agreed. Even then, it is impossible to foresee all of the potential hazards in a private working environment not controlled by employers. Therefore, employers can rely on information specifically obtained from employees for the risk assessment. In a mobile working set-up, it is even more difficult for employers to perform a risk assessment taking into account that employees can freely decide where they want to work at any given time. Therefore, employers' risk assessment is less comprehensive in remote working settings.
Employers must also properly instruct employees in accordance with Section 12 of the ArbSchG. This instruction must include guidance and explanations specifically addressing the situation of the individual workplace or the range of the individual tasks. This exercise must be performed on hiring, the implementation of changes to the tasks or the introduction of new work equipment or a new technology, in each case before the work is started. The instructions must take account of developments of individual hazards and may need to be repeated.
For home office workplaces that qualify as so-called 'tele workplaces' in accordance with Section 2(7) of the ArbStättV, the more specific obligations described in the ArbStättV, including its exhibits, must be observed. For example, special rules apply to workplaces with a visual display unit.
Finally, in remote working settings, each individual employee's health and safety law obligations in accordance with Sections 15 (self-protection) and 16 of the ArbSchG (obligation to notify their employer or manager of any imminent danger to health and safety) play a greater role than in an office set-up.
The fact that in a remote working setting employees are given the freedom to work from home or any other location of their choice does not eliminate the mandatory nature of existing working time laws. Employers and employees must still ensure compliance with:
Employers must take appropriate measures to ensure that working time requirements are complied with and working time is properly recorded.
The greater flexibility that employees have in determining the day or time of day when they work can also have financial consequences. If employees decide to work more at late hours or on weekends, this can trigger additional allowances under collective bargaining or works agreements. Employers should be aware of this and protect themselves at the time when remote working is implemented.
Working equipment and costs
As a general rule, employers must provide the necessary work equipment. Employees incurring additional expenses have a statutory entitlement to be reimbursed. This may apply especially where employees bring their own devices (which may cause a number of issues, especially with regard to data security or the return of confidential information). Often, employers and employees agree on a lump sum cost reimbursement in advance. The tax treatment of both the provision of company equipment with a right to private use and the reimbursement of costs must be carefully considered.
Confidentiality and protection of (sensitive) data and know-how
Remote working is subject to the same legal rules in terms of data privacy and the protection of trade and business secrets. However, since employers' ability to monitor employees and take corrective action is limited in a home office or mobile working setting, employers should assess in advance whether a job is actually suitable for remote working. For example, employers could exclude departments and positions from remote working that to a large extent handle customer or (sensitive) employee data. In addition, employers could provide for additional training and give clear instructions in order to create awareness of the specific risks that personal data and know-how are exposed to in a non-office work environment. The level of protection can be further increased by:
Right to cancel remote working arrangements
Unless an employee has a contractual right to work from home or a mobile work location, their employer can cancel a remote working arrangement and assign them to a workplace on company premises at any time. However, employers must still use equitable discretion when cancelling a remote working arrangement and take into account the employee's specific situation (eg, distance between the employee's home and the new work location, the employee's obligation to take care of children and the financial impact of commuting between the employee's home and the workplace in comparison with their remuneration). The greater the impact of a cancellation is on an employee, the more compelling the reasons must be that the employer puts forward in order to justify the cancellation.
If employees have a contractual right to work from home or a mobile work location, the cancellation of a remote working arrangement will require the employee's consent or, absent such consent, a termination for change of conditions. The latter is typically difficult to justify. Employers should include proper assignment clauses in the employment agreement or in any amendment or supplement agreement concluded at the time when remote working is implemented. This will give greater flexibility when there is a need to terminate remote working arrangements in the future.
Accident insurance coverage
Employees working from home or a mobile work location are protected by the statutory accident insurance in the same way as if they worked from a company workplace. However, it depends on the activity that ultimately leads to an accident as to whether insurance coverage is provided. The same activity in a home office setting may be viewed as an activity for private purposes and so may be excluded from protection while in a company office setting it would be fully protected (eg, a walk to the bathroom or kitchen).
Managing remote teams
Finally, employers must think of how to manage teams that work remotely. Companies may have to make additional efforts to keep their teams together and ensure that managerial supervision works efficiently and proper reporting protocols are put in place.
While home office or mobile working come with a number of benefits, there are also additional legal obligations that employers must be aware of and practical recommendations that should be observed at an early stage. Besides taking appropriate technical and organisational measures, employers should put proper contractual arrangements in place that not only define the rights and obligations of the parties, but also allow the employer to end remote working arrangements in a flexible manner, if needed.
For further information on this topic please contact Hagen Köckeritz at Mayer Brown by telephone (+49 69 7941 0) or email (email@example.com). The Mayer Brown website can be accessed at www.mayerbrown.com.
An earlier version of this article was first published in Labor Law Magazine.
(1) For further information please see "The new SARS-CoV-2 Occupational Safety and Health Rules".
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