More hype than substance? The pitfalls of home working

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Over recent weeks we have seen a shift in focus towards concepts such as home working, distance working and mobile working. This is mainly due to the fact that the coronavirus pandemic has resulted in numerous employees with location-independent jobs being banished to the ‘home office’.

Germany’s labour minister recently propagated plans to introduce a draft bill before the end of the year which will allow employees to voluntarily opt into part-time or full-time home working arrangements. The neighbouring country of the Netherlands, where the right to work from home is already enshrined in law, is a much-cited example of a country with a modern and flexible labour .

The public debate here in Germany has misjudged or, at least, glossed over the fact that employers who introduce home working have to meet numerous organisational obligations and duties of care which, if properly implemented, can be both complex and cost-intensive. Experience also shows that, in practice, virtual team meetings are not an altogether adequate substitute for face-to-face interactions.

The following sections include a number of questions and answers on the widely discussed issue of home working. Should employers be allowed to introduce home working on a whim? How should the ‘home office’ be organised? And will there be sanctions for compliance breaches?

I. Home working – a unilateral or bilateral decision?

It is established that employees do not currently have a general right to work from home, so should employers have a general right to introduce home working? In its decision of 14 November 2018 (case no. 17 Sa 562/18) in an action brought because an employer had unilaterally decided to permanently ‘relocate’ the employee’s workplace to a ‘home office’, the Berlin-Brandenburg Higher Labour Court ruled that the employee would only have an obligation to work from home if a collectively or individually negotiated agreement to that effect existed.

In the labour law discussion, the employer’s unilateral right to issue instructions under § 106 of the German Trade Regulation Act (Gewerbeordnung, GewO) was repeatedly rejected on the grounds that the employee’s right to the protection of his private home under the Charter of Fundamental Rights takes precedence. It is interesting that the Berlin-Brandenburg Higher Labour Court did not make reference to Art. 13 of the German Constitution in the aforementioned decision. Instead, it stated that work performed in a ‘home office’ is not comparable to work performed on the company premises because the ‘home office’ lacks communicative interactions between colleagues, the transitions between work time and leisure time are not clearly defined and the employee is less accessible to company and/or trade union representatives. It therefore ruled that the employer’s right to issue instructions does not extend to distance working.

II. Unilateral right to issue instructions in genuine emergency or crisis situations

When the coronavirus reared its head in Germany and the rest of the world a few weeks ago, it was quite rightly concluded that an emergency situation existed which legitimated the employer to issue exceptional and unilateral instructions, with certain limitations, transferring employees to home working arrangements. Various arguments support this:

  • First of all, the Berlin-Brandenburg Higher Labour Court’s arguments are not transferrable to the work situation during the coronavirus crisis. The ‘home office’ arrangements are not permanent and all-encompassing. They are situation-related and temporary. Communicative interactions between colleagues have been largely restricted to virtual communication – whether the employee is working from home or not – as a result of the nationwide physical distancing rules, lockdown regulations and operational changes. The same applies as regards accessibility to company and union representatives. Organisational measures can be taken to ensure clear transitions between work time and leisure time.
  • Many companies face significant financial losses – and in some cases insolvency – as a result of production stoppages, plant closures and operating restrictions. Reciprocal duties of care and the employee’s collateral duty of loyalty to the employer mandate that both sides do everything possible to minimise the losses. This includes employees working from home to ensure business continuity if the company would otherwise have to cease operations.
  • Although employers bear the operational risk that the competent authorities may close their business establishment under the German Protection Against Infection Act (Infektionsschutzgesetz), or restrict its operations and impose strict conditions, a limitation is necessary here to the extent that the employees bear the entire default of acceptance risk if it is possible and reasonable for them to work from home.
  • The Federal Ministry of Labour and Social Affairs states in its SARS-CoV-2 Occupational Health and Safety Standard of 16 April 2020: Office work should be performed if possible at home, especially if office premises would otherwise have to be used by multiple people with insufficient distancing. Home working can also help enable employees reconcile work with care needs (childcare or nursing care for relatives).
  • The employer’s duty of care also entails minimising the risk of infection on the company premises.

III. The need for legislation on home working arrangements

From a purely factual viewpoint home working has been introduced at very short notice throughout Germany in recent weeks. In some cases, this happened at the employer’s instructions and in others at the employee’s request. The necessity for ad hoc responses to unforeseeable external circumstances has often prevented the establishment of a sound legal basis for home working. Even if a bilateral agreement is unnecessary in exceptional circumstances, the employers still have to comply with numerous information obligations and duties of care, and face the threat of substantial fines for compliance breaches. Although the situation seems to be gradually stabilising at the moment, it is obvious that this pandemic will continue to affect the working world for a long time to come, and that home working will continue to be relevant in the medium term. As a result, it will be necessary for employers with home workers to make a number of improvements to ‘home office’ conditions according to the motto of ‘better late than never’.

Regulation is particularly necessary in the following areas:

  1. Occupational health and safety

The German Occupational Health and Safety Act (Arbeitsschutzgesetz, ArbSchG) and the Workplaces Ordinance (Arbeitsstättenverordnung, ArbStättV) also apply, with restrictions, to home working. The employer therefore has the obligation to implement a risk assessment and to provide comprehensive health and safety information to the employees. In order to implement a risk assessment the employer generally requires right of access to the employee’s ‘home office’ workplace. The fine for each case of non-compliance is EUR 5,000 (cf. § 9, para. 1, no. 1, 9 ArbStättV in conjunction with § 25, para. 2 ArbSchG).

It is also necessary to consider that Federal Social Court case law on the recognition of accidents at work pursuant to § 8 of the German Social Code (Sozialgesetzbuch, SGB) Book VII is very restrictive. Even short breaks, e.g. to get a glass of water from the kitchen, have in the past been deemed a non-work activity and therefore not an insured event under an accident insurance policy. It is possible in the case of uninsured accidents that the statutory health insurance providers, which then have to pay the costs of therapeutic remedies and aids, will take recourse to the employer. If it turns out that the employee had an accident while working from home because the employer did not provide suitable equipment or safety instructions, the employer may be liable.

  1. Data security and data privacy

As the data controller pursuant to Art. 32 of the EU General Data Protection Regulation (GDPR), the employer is responsible for ensuring the legally compliant processing of personal data and for implementing appropriate technical and organisational measures to provide an appropriate level of data security. A person working from home needs an adequate Internet connection and a secure network. If the employee’s living situation makes it impossible to process documents and data in a lockable room so that third parties and family members are not able to see them, an alternative way to protect them against unauthorised access must be found. Data also have to be destroyed and erased in a data protection-compliant way. Even though many factors are taken into consideration when determining the amount of fines, data protection violations can be expensive for the employer.

  1. Compliance with the German Working Time Act (Arbeitszeitgesetz)

The employer is also responsible for compliance with the Working Time Act. Although this obligation can be delegated to the employee, overall responsibility still remains with the employer. Accordingly, compliance with maximum working hours, break times and rest times, as well as the restrictions on Sunday and public holiday working, make it necessary for home workers to document their working hours and permit regular random checks on their worktime logs, even if the company generally has a trust-based working hours system. Violations can be associated with substantial fines of up to EUR 15,000.

  1. Works council co-determination rights

Many of the aforementioned aspects of home working which require regulation are associated with works council co-determination rights for companies with works councils. Even if a works council does not initially assert those rights in the coronavirus crisis in order to allow the company to continue operating for the time being, pressure to be involved in negotiations will increase over time. The most obvious co-determination right is accorded by § 87, para. 1, no. 6 of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG) when a company introduces or uses technical devices designed to monitor the behaviour and performance of the employees. § 87, para. 1, no. 2 BetrVG also accords the works council the right to co-determine the commencement and termination of the daily working hours including breaks and the distribution of working hours among the days of the week, and § 87 para. 1, no. 7 BetrVG accords it the right to be involved in arrangements for the prevention of accidents at work and occupational diseases, and for the protection of health of home workers on the basis of legislation or safety regulations.

IV. Home working is a reality but the necessary regulation isn’t – a roadmap

Employers who have introduced home working as an ad hoc measure without any agreement of terms and conditions, or supporting instructions and information, should rectify this omission immediately in order to minimise the previously explained future risks. The following should be taken into account:

  1. Employers who have not already done so should comply with their information and organisational obligations as soon as possible, delegate the obligations to the employees to the greatest extent possible and provide any necessary information to the employees.
  2. Ideally, a subsequent written agreement on the introduction and terms of home working should be concluded with the employees.
  3. Ultimately, the home working principles should be implemented in a permanent policy or, if the company has a works council, negotiations about the introduction of a company agreement should take place.

V. Summary

In times when thousands of employees are working short time and in fear of losing their jobs it seems almost cynical to reignite the debate on home working rights. Home working has also already lost some of its appeal for those employees whose jobs are not threatened because they can perform them from home. The glamorous initial image of a new home-based work scenario has, in many cases, transfigured into loneliness, too much fast food and backache due to the lack of a proper office chair.

In an already (over-)regulated world of work the political narrative should be focused on stronger solidarity, community and confidence in the labour partners’ ability to come up with practical solutions that do justice to the interests of both sides.

National legislation on home working should not transfer the cost burden of introducing legally sound arrangements to the companies. We are interested to hear the German labour minister’s proposals on how this can be achieved in line with current occupational safety and data protection requirements and the relevant employer obligations.

Your contact person:
Dr. Andrea Panzer-Heemeier, Managing Partnerin
+49 173 7291 414
andrea.panzer-heemeier@arqis.com

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