Digitization and technological advances are accelerating the flexibility of working conditions leading to a changed understanding of leadership. A key topic of debate is the “home office” which is currently used by approximately 12 per cent of employees in Germany for all or part of their working time. On this topic, the German government is currently considering a bill requiring companies to comply with a worker’s desire to work from home – based on their assessment that 40 per cent of all employees could realistically work from home and that the majority of employees would be interested in doing so.
This would be a complete shift from the current legal position. Under the existing law in Germany employees have no legal right to carry out their work by “teleworking”. Whether a worker is permitted to work from home or not is in the employer’s sole discretion. At the same time, working from home cannot be imposed on employees without their consent.
The government cites satisfied and thus more productive employees as a positive reason for the proposed change in the law. However, the legitimate interests of the employer must also be taken into account. A legal requirement for home offices will limit the entrepreneurial freedom to organize work in such a way that corporate objectives are most efficiently achieved. Also, there is the possibility of alienation in the team and the loss of control over employees’ work and working time. Furthermore, compliance with occupational safety regulations (occupational safety law, workplace regulations), data protection (BDSG) and IT security preclude allowing an employee simply to work with a laptop at the kitchen table. The Working Hours Act must also be adhered to, in particular the legal obligation to take an eleven-hour rest period after completing the day-to-day work.
It is yet unclear how the federal bill on a “Home Office” entitlement might look. It is planned for autumn and similar to the existing law on part-time working might provide for a claim only under certain conditions. In particular it might exclude a claim for a home office if there are opposing operational reasons, for example, if the home office rule “significantly affects the organization, workflow, or safety in the business or causes disproportionate costs.” Also, an exception for smaller businesses and – one would hope – for certain roles where presence in the office is essential should be included.
Despite all potential exceptions a legal claim to home office is viewed critically by the employers’ associations. They rightly argue that agreements between the parties to the employment contract or with works councils at company level or by way of collective bargaining agreements might be a better way to deal with the issue as a “one-size-fits-all” solution may not be the best option.
