In its judgement of 26 August 2021, Case No. 3 SaGa 13/21, the Regional Labour Court (Landesarbeitsgericht) of Munich ruled that an employer who had permitted his employee to perform his work in a home office is in principle entitled to change his instruction pursuant to section 106 sentence 1 of the Trade, Commerce and Industry Regulation Act (GewO) if operational reasons later emerge that speak against the completion of work in a home office.
Employee in home office according to employer's instructions
The employee was employed full-time as a graphic designer. Since December 2020, the employees otherwise working in the office worked at their respective place of residence due to the permission of the managing director, with the exception of the secretariat, which remained present on site in the office in Munich to a limited extent. By instruction dated 24 February 2021, the employer ordered the plaintiff to return to work as a graphic designer while being present at the office in Munich. With his complaint, the employee wanted to achieve that he be allowed to work from the home office and that this home office activity may only be interrupted in exceptional cases.
Employee has no right to home office in the absence of an employment contract agreement
The Labour Court dismissed the application for an interim injunction. A right to work in a home office did not arise either from the employment contract or from section 2 subsection 4 of the SARS-CoV-2-ArbSchV. Also, no obligation of the employer to exercise his right of direction in the desired manner within the framework of equitable discretion could be derived from § 106 p. 1 GewO. The employer was responsible for specifying the duty to work. The general risk of contracting Covid-19 on the way to work and the general risk of infection at the place of work and during the lunch break did not preclude an obligation to appear at the office.
Employer can re-determine place of work by instruction and demand "return" to office
The Regional Labour Court (LAG) of Munich confirmed this decision and stated that the employer was entitled to re-determine the place of work by issuing instructions while exercising equitable discretion. The place of work was not fixed at the plaintiff's home, neither in the employment contract nor by virtue of a later explicit or tacit agreement between the parties. The right to perform the work from home had also not existed in February 2021 pursuant to § 2 para. 4 SARS-CoV-2-ArbSchVO. According to the intention of the legislator, this provision did not convey a subjective right to a home office. The instruction had respected equitable discretion, since compelling operational reasons precluded the exercise of the activity at home. The technical equipment at the home workplace did not correspond to that at the office location and the employee had not shown that the data were protected against access by third parties and the wife working in competition.
The judgement is final.
Source: Press release of the LAG Munich of 31.08.2021
