The end of remote working?

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Companies are increasingly calling for their employees to return to the office. This is being met with criticism and a lack of understanding, not least because many employers have already reduced their office space. Will the stricter rules really lead to the end of the short era of working from home? Or is it rather a case of ”RTO¹ is DOA?”². From a labour law perspective, we shed light on whether employers can demand a full return to the office and what they have to consider.

An employer's right to issue instructions

In principle, an employer can determine the place of performance of work at its reasonable discretion by way of its right to issue instructions. So a request to return to work is legally permissible. However, the employment contract, a works agreement, an applicable collective agreement, or statutory provisions may provide deviations from this.

Right to work from home

According to current legislation, employees don’t have a right to work from home. Although the coalition agreement holds out the prospect of an employee's right to discuss mobile working and working from home, this has not yet been implemented in legislation. On the other hand, there are now a number of company agreements and collective agreements that contain provisions on mobile working. For example, the collective agreement for public banks provides for a right to mobile working of up to 40% of weekly working hours. Exceptions to this are only permitted in individual cases and not in relation to the entire workforce.³ So far, private banks have rejected the right to work from home under collective agreements. Another common phenomenon is agreements supplemental to the employment contract regulating the details of working from home.

Co-determination rights of the works council

In co-determined companies, the employer must uphold the co-determination rights of the works council. In the case of a “return to office’’ initiative, employers have to first assess whether there are any transfers under Sections 95 and 99 of the German Works Constitution Act (Betriebsverfassungsgesetz (BetrVG)), as these require the prior consultation and consent of the works council.

In addition, the works council could be entitled to a right of co-determination (Section 87 (1) No. 14 BetrVG) regarding the organisation of mobile work if not only the “whether” but also the “how” of mobile work is affected. A decision by the Munich Regional Labor Court (8 TaBVGa 6/23) from last year indicates that the number of days that may be worked from home is part of the “whether.”

But if the employer wishes to determine the number of permitted days of mobile working, the “how” is affected, meaning that the works council has a right of co-determination. Like many details of the – relatively new – right of co-determination pursuant to Section 87 (1) No. 14 BetrVG, this question is controversial.

Practical tips

Before generally ordering all employees to return to the office, employers should find out what agreements and regulations exist in this regard. If works agreements or collective agreements contain provisions on mobile working, they can place considerable legal restrictions on the employer. You will also find information on occupational health and safety requirements for a home office and what needs to be taken into account when reclaiming salary due to non-performance of work in the home office on our blog.