Many employers allow their employees to perform all or part of their work from the home office. The Corona pandemic has played a particularly large role in the current popularity of mobile working. Until the beginning of July 2021, employers were required by the SARS-CoV-2 Occupational Health and Safety Regulations to offer their employees the opportunity to work from their home offices if the activities could be performed outside of the regular workplace. In recent months, many employers have also created or expanded the necessary infrastructure to continue to offer their employees the option of working from home. At least according to our clients, the majority of them have had very good experiences with offering their employees more flexible solutions with regard to the place of work. At the same time, however, employers often wish to be able to react flexibly to changes and, if necessary, to be able to bring their workforce back into the company. In this context, the Munich Labour Court made an important decision on August 26, 2021 (Case No.: 3 SaGa 13/21) and ruled that the employer is generally entitled to recall employees to the office if operational reasons emerge that speak against employees working from the home office.

The decision was based on the following facts: In December 2020, due to the Corona pandemic, an employer located in the Munich area made it possible for all employees to perform their work from home without a formal agreement having been concluded in this regard. The employee, who would later be the Plaintiff, worked as a graphic designer and took advantage of this home office option. He started working from home in December 2020. Only a very small number of employees remained in the office. At the end of February 2021, the employer instructed the soon-to-be Plaintiff to return to the office from then on. The employee did not agree with this and applied for an interim injunction at the Munich Labor Court that aimed at forcing the employer to allow him to continue working from the home office.

After an oral hearing, the Labor Court dismissed the application for an interim injunction. It found that the employer is in a position to define the work duties on the basis of the right of direction to which it is entitled. This also includes the right to determine from which location the work is to be performed. This applies in any case if the agreements in the employment contract do not restrict the employer’s right of direction with regard to the determination of the place of work. This was the case here, as there was no separate agreement determining that work would be performed from the home office. Furthermore, the Labor Court found that there was also no right for the employer to work from home due to the Corona pandemic. Even the special situation during the Corona pandemic does not, in principle, preclude working at the company workplace, because the employer is obligated to observe certain hygiene measures and must maintain a hygiene concept. Since the employer has the obligation to create a safe working environment by observing the known protective measures (obligation to wear masks, distance regulations, special room regulations, etc.), it is in principle reasonable for the employee to also perform his work at the company workplace. The general risk of contracting COVID on the way to work also does not preclude an obligation to appear at the workplace. Nor could an employee’s right to work at home (against the declared will of the employer) be derived from the regulation, which expired on July 1, 2021, according to which employers should offer their employees the opportunity to work from home in appropriate cases.

Upon the employee’s appeal, the Munich Labor Court Munich confirmed the decision and additionally stated that the employer was permitted to re-determine the place of work by instruction and to have the employee work in the office again, while maintaining reasonable discretion. When instructing the employee to return to the office, the employer must act within the bounds of reasonable discretion and consequently may not make any extraneous considerations. Rather, there must be comprehensible operational reasons. In the specific case, the employer’s decision to order the employee to return to work was not objectionable because, according to the court’s findings, the technical equipment at the home office workplace was worse than the one in the office, so that the employee could perform his work better from the office. Furthermore, the employer expressed concerns about data protection and trade and business secrets in the employee’s home workspace and believed that these could be better protected in the office. In the opinion of the Munich Labor Court, the employee must demonstrate that he also ensures an adequate level of protection for the employer’s data in the home office area, which he specifically failed to do.



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