The Munich Regional Labor Court, in its judgment of august 26, 2021, file no. 3 SaGa 13/21, ruled that an employer who had permitted an employee to perform their duties from a home office is generally entitled, pursuant to Section 106 Sentence 1 of the Industrial Code (GewO), to modify their instruction if operational reasons subsequently emerge that preclude the performance of work in a home office.
Employee in Home Office by Employer's Instruction
The employee was employed full-time as a graphic designer. Since December 2020, employees who usually worked in the office had been working from their respective residences with the managing director's permission, with the exception of the secretariat, which remained present on-site at the Munich office to a limited extent. By instruction dated February 24, 2021, the employer ordered the plaintiff to resume performing his duties as a graphic designer with physical presence at the Munich office. The employee sought through his lawsuit to be allowed to work from a home office and for this home office activity to be interrupted only in exceptional circumstances.
Employee Has No Claim to Home Office Without an Employment Contractual Agreement
The Labor Court rejected the application for a preliminary injunction. It found that no claim to work from a home office arose from either the employment contract or Section 2 Para. 4 of the SARS-CoV-2 Occupational Safety and Health Ordinance. Furthermore, Section 106 Sentence 1 of the Industrial Code (GewO) did not establish an employer's duty to exercise its right of direction in the desired manner within reasonable discretion. The specification of work duties was deemed the employer's prerogative. The general risk of contracting Covid-19 on the commute to work and the general infection risk at the workplace and during lunch breaks would not preclude an obligation to appear in the office.
Employer Can Redefine Place of Work by Instruction and Demand "Return" to the Office
The Munich Regional Labor Court affirmed this decision, stating that the employer was entitled to redefine the place of work by instruction, exercising reasonable discretion. The place of work was not fixed to the applicant's residence, neither in the employment contract nor by virtue of a later express or implied agreement between the parties. Furthermore, the right to perform work from home did not exist in February 2021 under Section 2 Para. 4 of the SARS-CoV-2 Occupational Safety and Health Ordinance. According to the legislator's intent, this provision does not confer a subjective right to a home office. The instruction observed reasonable discretion, as compelling operational reasons precluded the performance of work in the residence. The technical equipment at the home workplace did not correspond to that at the office location, and the employee failed to demonstrate that the data were protected against access by third parties and the competing spouse.
The judgment is legally binding.
Source: Press release of the Munich Regional Labor Court dated august 31, 2021
