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11 January 20243 minute read

Reclaiming salary due to non-performance of work in the home office - burden of presentation and proof

Access German version here

In principle, the employer bears the burden of presentation and proof that, and to what extent, the employee has not fulfilled their work obligations. The employee must provide a substantiated response to the employer's corresponding procedural arguments. This also applies to work performed in the home office. This was decided by the Higher Labour Court of Mecklenburg-Vorpommern (LAG) on 28 September 2023 (case no. 5 Sa 15/23).


The case

The plaintiff employee mainly worked from home. On individual working days when the employee was working from home, she sent emails to colleagues with which she sent documents or requested information, among other things. The employee used her private laptop for this purpose. The employer terminated the employment relationship with notice during the probationary period.

After termination of the employment relationship, the employee sued for payment of outstanding remuneration and compensation for outstanding holiday. By way of a counterclaim, the employer demanded repayment of the gross salary for a total of 300 hours. The employer stated that the employee did not actually work from home.


The decision

The LAG found that the principle of no work, no pay also applies to home office activities. According to this principle, if work is not performed, the entitlement to remuneration lapses unless another legal basis provides for an entitlement to continued payment of remuneration - for example under the Continued Remuneration Act (Entgeltfortzahlungsgesetz) or the Federal Leave Act (Bundesurlaubsgesetz). According to the LAG, this means that in court proceedings, it is the employer‘s responsibility to demonstrate and, if necessary, prove that and to what extent the employee did not fulfil their obligation to work. If the employer presents such evidence during the proceedings, the employee must provide a substantiated response. In this case, the LAG found that the employer did not fulfil its burden of presentation.


Practical note

In principle, employees bear the burden of presentation and proof with regard to their entitlement to remuneration. However, according to higher court rulings, this does not apply if employers reduce the remuneration or (partially) reclaim it. In this case, the employer bears the burden of proof that and to what extent the employee did not fulfil their work obligations.

In its decision, the LAG expressly clarifies that this also applies to work performed in the home office. In principle, this does not come as a surprise. However, it cannot be denied that the possibilities for employers to prove that employees are not performing work are even more limited in the home office than for work performed in the employers office. In any case, if there is a suspicion that the employee is not performing work, the employer should issue specific work instructions and check and document their implementation in order to be able to prepare sanctions under labour law if necessary. Employers should also ensure that employees working from home use work devices for their work. Depending on the individual case, this could at least be used to register logins - or lack of logins - on the company network. In any case, however, extreme caution must be exercised when monitoring at the (home) workplace and compliance with the strict data protection requirements must be ensured for each individual case.

You can find the judgement of the LAG Mecklenburg-Vorpommern here.