Corona - Back to the office

Since March 2020, working from home quickly established itself as a good tool to achieve several goals at once: (i) combating the pandemic, (ii) protecting employees, and (iii) maintaining daily operations.

Problem

In those areas in which home office solutions were operationally feasible, employers - for understandable reasons - therefore resorted to a pragmatic solution across the board: "We send the employees home and then they are supposed to work from there (the rest will sort itself out eventually)".

This implementation has sometimes been carried out with the approval of the works council, and in some cases agreements have been reached with the works council and/or with the employees to accompany (or follow on from) this. In general, however, there are still no formal agreements on working from home.

After more than 18 months of the pandemic, more and more employers are asking themselves whether and how employees can be brought back again to work in the office, especially if there is a lack of agreements regulating this aspect.

Decision

The LAG Munich has now described a simple possibility in a recent decision (26 August 2021 - 3 SaGa 13/21): The employer would have to exercise his right of direction alone. Provided that no binding agreement on the place of work has been made between the parties, the employer is still entitled pursuant to Sec. 106 GewO to determine the place of work, subject to the exercise of equitable discretion. Just as the order to perform the work from home was an employer's instruction, the return to work at the office is also an exercise of the right of direction.

In the decided constellation, the corresponding instruction corresponded to equitable discretion, with the consequence that the employee had to perform his or her work in the office again.

Practical consequences

Even though this is a decision in interim injunction proceedings, it is gratifying and to be welcomed. First of all, it is to be welcomed that the court clearly rejects a concretisation of the place of work to the home office - a finding that will reassure quite a few employers in comparable situations. Likewise, the court shows a way how home office agreements can be legally secure in the future: Instead of reservations of revocation or time limits - the legally effective agreement of which will not be examined here - a reference to the right of direction should simply be included, if necessary taking into account a notice period. This is expedient and consistently continues the case law of the BAG on the determination of the place of work.