02-26-2021  | Update Employment Law February 2021

Right to work from home through the back door?




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When a change of the work location aimed by a notice of termination fails due to the home office option.

ArbG Berlin, judgment of 10.08.2020 - 19 Ca 13189/19

The possibility of performing the work at home with an existing technical infrastructure may prevent a notice of termination with the assignment of a different place of work based on the applicable ultima ratio principle. 

FACTS

The parties argue about the validity of a notice of termination subject to a change of employment issued to the plaintiff.

In October 2019, the defendant terminated the employment relationship with the plaintiff, who had been employed as a sales assistant at its Berlin branch since November 1992, with due notice and at the same time offered her the continuation of the employment relationship with a new place of work in Wuppertal. Prior to this, the defendant and the works council formed at the company had agreed on a reconciliation of interests and a social plan, according to which all of the defendant's branches, with the exception of the head office in Wuppertal, would be closed by the end of 2019.

According to the plaintiff, the notice of termination is invalid because it is possible for the defendant to employ the plaintiff at her office at home as a "mitigating measure". After all, the defendant had also offered this to the former branch managers. In addition, a framework directive of the defendant from July 2019 also provides for the possibility of performing work at home. After all, her work is already carried out completely digitally with an electronic file management system. 

The Defendant, on the other hand, claims that the Plaintiff cannot perform her contractually owed work from home because, in contrast to the branch office managers, she does not work in the field. In addition, the performance of her work at the (Berlin) home office is not in line with the company's decision to close the Berlin branch (among others).

DECISION 

The employee's action was successful. 

According to the Berlin Labor Court, employers are obligated to limit themselves to the extent that is indispensable for the implementation of the entrepreneurial decision when making changes to working conditions. 

The Berlin Labor Court thus goes further than the BAG, according to which employers are only required to limit themselves to what is absolutely necessary in the event of a dismissal with notice of termination due to changes in circumstances in application of the principle of proportionality (BAG August 12, 2010, 2 AZR 945/08; BAG November 29, 2007, 2 AZR 388/06).  

Furthermore, the Berlin Labor Court's assumption that employers must necessarily take into account the possibility of performing work at home as a "mitigating means" is very broad. Although there is no fundamental entitlement of an employee to work at home, employers are obliged to explain in each individual case whether the employee is entitled to work at home and name the reasons why a physical presence is needed to fulfill the contractual duties. 

Despite the plaintiff's detailed submission to this effect and despite the court's indication, the defendant had not explained why the plaintiff's work could not also be performed at home. The defendant's blanket reference that "the performance of the activity at home does not correspond to its entrepreneurial decision" is arbitrary and appears "out of time" in light of the Corona pandemic. 

The decision is not yet final: The defendant has filed an appeal against the decision at the Berlin-Brandenburg Regional Labor Court. 

PRACTICAL ADVICE

The ruling of the Berlin Labor Court is surprising, at least at first glance, as it grants the employee a claim to work at home through the "back door", which does not exist in law and was therefore not "created" by previous case law (ArbG Augsburg 07.05.2020, 3 Ga 9/20; LAG Cologne 24.05.2016, 12 Sa 677/13; LAG Rhineland-Palatinate 18.11.2014, 5 Sa 378/14). 

However, we will have to wait and see whether the Berlin-Brandenburg Higher Labor Court shares the opinion of the Berlin Labor Court and "over-rules" the previous case law in this respect.

Even though the decision is not yet legally binding, due to the Corona pandemic and the associated significantly higher relevance of home office activities, it can be assumed that employers, particularly in the case of a (partial) shutdown in the context of dismissal protection proceedings, are well advised to specify and present reasons that speak against the permanent performance of the activity at home.

In principle, an employer cannot be obligated to create and equip a new or different workplace - such as the employee's home in this case; otherwise, his entrepreneurial organizational decision would be inadmissibly interfered with, at least if the performance of the work at home is not provided for by the employer in principle (i.e. not only exceptionally or temporarily) (BAG 14.10.2003, 9 AZR 657/02). The labor courts are not entitled to prescribe a "better operational or corporate structure" to the respective employers (BAG April 30, 1987, 2 AZR 184/86). However, this does not affect the need to provide concrete and comprehensible information on the feasibility of an organizational decision. It is possible that the employer will be able to "improve" this once again in the course of appeal proceedings and achieve a decision that dismisses the action. 

Whether the fundamental refusal of home office activities is particularly wise, however - detached from the current special situation in which this must be made possible in principle, as is well known - is another matter. 

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