Has the pandemic inadvertently established the right to work from home?

A decision by the Labour Court of Berlin (judgement of August 10, 2020, ref. 19 Ca 13189/19), contrary to previous case law, attempted to introduce – almost unnoticed and through the back door – an employee’s right to work from home. However, the question is whether this decision will become legally binding or whether it will be overturned by the appeal already pending before the Berlin-Brandenburg Higher Labour Court.

Until now, there has been no legal right to work from home in German labour law. The question arises whether this decision will change judicial practice and force employers to now offer their employees the right to work from home.

Facts

The defendant, an employer, had decided to close the Berlin branch office where the plaintiff had previously been employed. The employer therefore gave Notice of Change in the terms of employment and offered the plaintiff the opportunity to continue her employment at the main branch office in Wuppertal, which was to remain.

The employee defended herself against this Dismissal with Notice of Change before the Berlin Labour Court.

Decision

The Labour Court initially stated correctly that the closure of the Berlin branch was a business decision that could not be reviewed by the court, or only be reviewed for arbitrariness.

However, after reviewing the Notice of Change, the Labour Court of Berlin stated that the changes to the working conditions had to be "limited to the extent" that was "indispensable for the enforcement of the underlying business decision"

Therefore, the Berlin judges concluded, the plaintiff should have been offered the option of working from home as a more moderate means of changing her place of work.

The fact is that there is no fundamental right to work from home. However, the employer had not explained why it was necessary for the plaintiff to be physically present at the Wuppertal location to perform their work. The employer's insistence on termination therefore appeared to be archaic and ultimately arbitrary in light of the widespread acceptance of working from home due to the current pandemic.

As the plaintiff had not been offered this less severe remedy, the Dismissal with Notice of Change was unlawful. As a result, the Berlin Labour Court upheld the plaintiff's unfair dismissal claim.

Conclusion

The Berlin Labour Court’s decision, if it becomes final, would be a real and dramatic paradigm shift. Until now, it was generally accepted that business decisions were largely exempt from review by the courts. This is because - according to previous case law - the employer alone is responsible for how it runs and organises the company. It was assumed that even senseless, impractical, or unnecessary decisions were to be accepted and exempt from judicial review. Only in the case of obviously arbitrary measures have judges so far interfered with economic freedom. This is because organisational business decisions are not questioned unless obviously irrelevant, unreasonable, or arbitrary in accordance with the freedom to pursue a trade or profession (here: economic freedom) as per Article 12 (1) Sentence 1 GG.

If labour courts are in the future viewed as making better business decisions, this represents a massive and – in our opinion – unlawful encroachment on the entrepreneurial freedom protected by the German Constitution. If labour courts can overturn the employer’s organisational decisions "through the back door” and thus impede their better, more sensible and more expedient plans, this would destroy economic freedom and the courts would have jurisdiction over such decisions. This is clearly unlawful and cannot be allowed.

The employer, as the defendant, has therefore appealed the decision to the Berlin-Brandenburg Higher Labour Court (LAG) under case Number 4 Sa 1243/20. The decision is still pending.

Incidentally, the Cologne Labour Court (Labour Court Cologne, judgement of August 1, 2014, ref. 1 Ca. 10459/13) ruled in a similar case that working from home could be considered a less severe measure. The Cologne judges stated that this is the case in situations where an employer cannot document and prove why working from home is not feasible due to the specific activity performed by the employee.

Practical tip

Even if the decisions discussed here are only individual lower court decisions, employers are nevertheless well advised to take note of this trend and, in their business decisions, consider the possibility of whether the specific tasks can be performed by someone working remotely, e.g. from home. Especially since doing so seems to sway even the Berlin and Cologne judges into wanting to bolster economic freedom by, with full conviction, excluding working from home as a milder remedy in such cases.

However, as long as the pandemic continues, the right to work from home - at least temporarily - could result from the SARS-CoV-2 Occupational Health and Safety Regulation. Employers should also keep this in mind and seek legal clarification.

In addition, politicians are increasingly discussing whether or not to codify the right to work from home, or remotely, for post-pandemic times. This trend should be further monitored.

Regardless of what those in law and politics are contemplating, employers should understand that some employees will prefer to continue working remotely after the pandemic due to their positive experiences doing so. Employers should therefore consider introducing telework as an attractive alternative to on-site work in their branding considerations.

In any case, employers eagerly await the decision of the Berlin-Brandenburg Higher Labour Court and its accompanying rationale.

Do you have questions or want to know more?

Please get in touch

This is a post from our newsletter "People in Business" 1-2021. The entire newsletter can be found here . You can also subscribe to this newsletter and receive the current issue directly on the release date.