Since the pandemic, many employers have also been offering the option of working from home, and this trend is on the rise. This makes the topic of working from home highly relevant in employment contracts in practice. However, there is currently no legal right to work from home in Germany (yet). Employers are not obliged to allow their employees to work from home. However, depending on the agreement, a right to work from home may arise from the employment contract, works agreements or even collective agreements. Offering home office options as an employer can increase the attractiveness of the job and create a better work-life balance for the employee. If such a home office agreement is reached, it should be set out in a contract. Both the interests of the employee and the employer should be taken into account when drafting the agreement.
Regulatory content in employment contracts
When including home office agreements in employment contracts, it is important to cover the key aspects of labour law. The key aspects are regulations on the specified home office days or a corresponding agreement on their flexible arrangement. Furthermore, the permitted place of work and availability should be specified. The parties are also free to specify a certain day as a home office day or a higher number of home office days per week/per month. Provisions regarding the necessary technical equipment in the home office and, if necessary, an agreement prohibiting the use of private work equipment are also essential. Employers regularly bear the costs for this, but the parties may also agree otherwise. Furthermore, a provision on legally compliant and internal compliance with data protection regulations and technical processes is essential.
For home offices, it can also be stipulated that employees are free to organise their working hours throughout the day, as long as the agreed work is completed and core working hours are adhered to. This model is known as trust-based working. However, with working time models such as this, it is particularly important to ensure strict compliance with working time legislation, as this also applies outside the workplace. In addition, employees must ensure that they observe the agreed break times and record them for the employer’s accountability. In the long term, a lack of regulations and disagreements between the employer and employee can lead to a shift in liability risks and labour law disputes. In the interests of both parties, this should be avoided in advance if possible. It is therefore worthwhile for employers to seek legal advice when drawing up employment contracts. It is also advisable for employees to seek advice and have the employment contract they are about to sign reviewed in advance.
Occupational safety in the home office
An important point to note is that statutory accident and insurance cover is not limited to the company premises but can also continue to apply in the home office. This means that employers must take occupational safety measures to minimise the risk of accidents for employees working from home. The design and implementation of occupational safety measures proves difficult due to the physical distance involved. In principle, the employer can be granted access to the employee’s home office, or the employee can be required to provide photographic documentation for remote assessment as part of their duty to cooperate. Accident protection in the home office only applies to work-related activities, i.e. those that primarily serve a work-related purpose. Whereas earlier decisions, such as that of the SG Munich, in its ruling of 4. Juli 2019, Aktenzeichen S 40 U 227/18 did not consider going to the toilet and eating meals to be work-related activities and rejected them as occupational accidents, a change in the law in 2021 extended occupational safety in the home office, thus taking social developments into account.
According to recent decisions by the LSG Lower Saxony-Bremen in its ruling of – Az: L 14 U 29/22 und des LSG Lower Saxony-Bremen in its ruling of 15.01.2024 – L 3 U 168/23 even an accident involving an employee who is on their way back from purchasing a lunch meal outside their home office for immediate consumption at home may constitute an accident at work. The prerequisite for this is that the accident occurs during the lunch break integrated into the company’s operational processes; the fact that this break may be taken at any time does not preclude this. However, accident protection is not unlimited. According to the established case law of the Bundessozialgerichtes in seinem Urteil v. 06.12.1989, B 2 RU 5/89 relieving oneself is not a work-related activity and is therefore not covered by accident insurance. The LSG Baden-Württemberg, judgement of 30.04.2020, L 10 U 2537/18 states that accident insurance cover ends at the toilet door. According to this ruling, even an accident that occurs while in the toilet without relieving oneself (e.g. for the purpose of washing one’s hands) is not a work-related activity, meaning that this would not constitute an accident at work.
Employer’s recall option
In its judgment of 26 August 2021 – 3 SaGa 13/21, the Munich Regional Labour Court ruled that employers generally have the option of ordering employees to return from working from home at any time. However, the employer must exercise reasonable discretion when deciding on a new place of work. Whether this is the case usually requires consideration on a case-by-case basis. However, the following indicators may be relevant:
- Operational events that require a return from working from home
- Compliance with data protection regulations and technical procedures in accordance with the law and internal company policy can no longer be guaranteed
- The equipment in the home office does not meet the standards of the company premises
- A lack of contractual home office regulations combined with only short periods of working from home, so that it cannot be assumed that this is a major exercise