Return to office - employer may instruct employees to return

Employers are allowed to instruct employees to return from the home and work from the office again, even though there are still risks due to the Corona pandemic. This was clarified by the Regional Labour Court (LAG) of Munich in its judgement of 26 August 2021 (Ref.: 3 SaGa 13/21).

Working from home and the Coronavirus pandemic

Since the start of the Coronavirus pandemic in early 2020, working from home has been a reality for many employees. To minimise the risk of infection, many employers have instructed their employees to work partially or even completely from home. What was initially intended as a temporary solution became the new normal for many. However, especially in view of the now existing possibility to monitor the pandemic through the so called "3G rule" – vaccinated, recovered, tested (in German all three begin with a "G") – many employers are seeking a return of their employees to the office. Since working from home has brought an increase in flexibility for many employees, many employers expect resistance and feel compelled to unilaterally instruct employees to return from home. However, is the employer allowed to instruct employees to return from home even in light of the Coronavirus pandemic? The clear answer of the LAG Munich of 26 August 2021 is: Yes. In particular, the German Corona Occupational Health and Safety Ordinance (SARS-CoV-2-ArbSchVO) does not prevent such instructions.

Judgement of the LAG Munich

The decision of the LAG Munich was based on the following facts: The employee was employed full time by the employer as a graphic designer. Since December 2020, the employees otherwise working in the office had been working from home due to the permission of the employer's managing director, with the exception of the secretary's office, which remained present on site in the Munich office to a limited extent. By instruction of 24 February 2021, the employer directed the employee to return to work as a graphic designer while being present at the office in Munich. This was justified, among other things, by the fact that the company data was not sufficiently protected from access by third parties, in particular his wife, who worked for a competitor company, while working from home. With his application for an interim injunction, the employee wanted to achieve that he be allowed to work from home and that this may only be interrupted by the employer in exceptional cases.

The application for an interim injunction was rejected in the first instance arguing that the employer was allowed to re-determine the place of work by instruction with due regard to equitable discretion. In particular, the employee had no right to working from home, neither based on the employment contract nor on Clause 2 para. 4 SARS-CoV-2-ArbSchVO. Clause 106 sentence 1 of the Trade, Commerce and Industry Regulation Act (GewO) also did not impose an obligation on the employer to exercise his right of direction within the framework of equitable discretion in the manner desired by the employee. Moreover, the general risk of being infected with Covid-19 on the way to work and the general risk of infection at the office and during the lunch breaks did not preclude an obligation to appear at the office.

This decision was now confirmed by the LAG Munich, which further argued that the employer was entitled to re-determine the place of work by issuing instructions while exercising equitable discretion. The place of work had not been fixed at the employee's residence either in the employment contract or by virtue of a later express or tacit agreement between the parties. Even in February 2021, the right to working from home did not exist on the basis of Clause 2 para. 4 SARS-CoV-2-ArbSchVO, as the Corona Protection Ordinance did not confer a "subjective right" to employees at this point. The instruction to return from home was within the bounds of reasonable discretion, as compelling operational reasons prevented the employee from carrying out his work 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 company data at the home workplace were sufficiently protected against access by third parties - in particular the wife working for a competitor.

Please note that the judgement is not yet available in full text, but only as a press release.

Assessment and perspective for practise

The decision of the LAG Munich is to be agreed with. It was thus confirmed by the courts that employers are not completely deprived of their authority to issue directives to employees even by any regulations to combat the Coronavirus pandemic. Even in times of a pandemic, employers are therefore entitled to order employees from the home office back to the office. In particular, the clarification that Clause 2 para. 4 of the SARS-CoV-2-ArbSchVO does not give employees a subjective right and thus a claim to work from home is to be welcomed.

It should be noted, however, that the instruction to return to the office in the case decided by the LAG Munich was also justified by the fact that the company data in the employee's home workplace was not sufficiently protected against access by third parties and that the employee's wife worked for a competitor company. Within the framework of the right to issue instructions under Clause 106 GewO, employers will therefore have to carefully weigh up whether their own company interest in returning to the office outweighs the employee's interest in remaining working from home. In this context, it must certainly also be taken into account what precautions the employer has taken to reduce the risk of infection at the workplace (distance rules, obligation to wear a mask, testing facilities, etc.), even if, according to the decision of the LAG, the general risk of infection in the office or on the way to work is not supposed to oppose the employer's right to issue instructions.

In the future, employers are advised to carefully prepare the return of employees to the office. Before giving instructions to return to the office, the conflicting interests must be weighed against each other. In addition, the employer must ensure that the applicable Coronavirus protection regulations are observed in the office in order to minimise the risk of infection for employees.

"Hybrid Working" as a future concept

In practice, more and more employers want to enable their employees to work in a hybrid way, ie partly from the office and partly mobile or from home. According to some surveys, hybrid working is also at the top of employees' wish lists. In order to remain attractive as an employer, companies will therefore hardly be able to avoid the implementation of hybrid working models.

When implementing hybrid working, however, employers have to consider some (legal) pitfalls. Questions that arise are, for example:

• May I instruct hybrid working for employees unilaterally? Do I need a directive for this?
• Does the works council have right to co-determinate on the implementation of hybrid working?
• How do I ensure compliance with the German Working Time Act (ArbZG) when employees work from home?
• What health and safety requirements must home workplaces meet?
• How is it possible to adequately protect data and business secrets at home?

After the implementation of hybrid working, follow up questions may arise concerning the reduction of office workplaces and "shared desk" offices, which almost necessarily require a "clean desk" policy.

Our German Simmons & Simmons employment team has dealt in detail with the legal (employment) issues relating to "Hybrid Working" and has prepared corresponding presentation material. If you would like more information on the implementation of Hybrid Working, please do not hesitate to contact us at any time.