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04-29-2022Article

Update Employment Law May 2022

Duty of an employer to provide working resources

BAG (Federal Labor Court) November 10, 2021 – 5 AZR 334/21

In its judgment dated November 10, 2021, the Federal Labor Court (BAG) made a significant decision concerning the provision of essential working resources. This decision is not only important for the food delivery services to be seen everywhere today, but can also be applied to other sectors.

Facts

The Plaintiff is employed with the Defendant as a bicycle delivery person, a so-called "rider". This means that he uses his own bicycle to deliver food ordered by customers from various restaurants via the internet. The Plaintiff receives the work rosters as well as the addresses of restaurants and customers via the employer's app. He has to install this app on his internet-enabled mobile telephone.

In return for using his own bicycle the Plaintiff receives a repair credit note of EUR 0.25 per hour worked. However, this credit note can only be redeemed at specific repair shops. The Plaintiff does not receive any separate payment for the use of his own mobile telephone. 

Provision of working resources by the employer

According to the BAG, an employee has a claim to the provision of suitable and essential working resources under the law, Section 611a (1) BGB (German Civil Code). This subsection certainly applies to those working resources without which it would not be possible to perform the contractually agreed work. There is a basic assumption that the employee owes only the work performance and that the employer is required to provide the resources on or with which the work performance is provided.

The BAG unsurprisingly established that both a roadworthy bicycle and an internet-enabled mobile telephone are essential working resources for the work performance owed by the Plaintiff. 

Removal of the provision of working resources from the contract

The company had removed the provision of a bicycle and a mobile telephone from the contract. The idea was that the Plaintiff would use his own bicycle and his own mobile telephone for the work performance. However, this agreement is not compatible with the law on general terms and conditions of business. According to the BAG it is inadequate and thus ineffective. The employee has a legitimate interest in the employer himself providing the working resources required for the performance of tasks, because the employer is also the one that organizes the work processes and assigns the tasks to be carried out by the employee. 

In court, the employer stated that a typical contract partner, as was also the situation with the Plaintiff in the case at hand, already owns both an internet-enabled mobile telephone and a bicycle. Irrespective of whether this is true in a particular case, according to the BAG, this does not alter the fact that the general terms and conditions of business are ineffective. The employee's private items are subject to increased wear and tear as well as exposure to the risk of loss or damage when performing work. The employer also derives a not insignificant financial benefit from this. 

In the case at hand, the employee likewise does not receive any other form of compensation for this disadvantage.  The comment by the employer that the employee could assert respective claims for reimbursement of expenses was not sufficient. However, no ruling was made in this respect. Notwithstanding the fact that this would then merely reflect the applicable legal position and bring no benefits whatsoever to the employee, there would be major practical obstacles standing in the way of assertion. The employee would have to precisely quantify and itemize the claims for reimbursement.

The granting of a repair credit of EUR 0.25 per hour worked is likewise inadequate compensation. In the case at hand, the Plaintiff was unable to dispose freely of the money. He could only redeem the credit note in specific repair shops. In addition, no compensation for use was envisaged and the level of the repair budget was not based on the actual kilometers travelled but rather on the hours worked. 

Conclusion

It should come as no major surprise that a bicycle is an essential working resource for a bicycle delivery person. The fact that the employer is under a general obligation to provide the working resources is likewise nothing new. The BAG has not however generally excluded the use of private items as working resources. Nevertheless, the employee must receive appropriate and adequate compensation for this, which did not occur in the case at hand.

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