Today's working world has realized that home offices can entail numerous advantages both for employees and for employers. This not only leads to the question of whether employees have a legal right to working from a home office ( Legal claim to home office?), but courts recently also had to decide whether the employer's right to issue instructions includes whether home office work could be mandated for employees (Berlin-Brandenburg State Labor Court, October 10, 2018, Case 17 Sa 562/18). In its ruling, the State Labor Court answered this question to the effect that the right to issue instructions under an employment contract in accordance with Section 106 Industrial Code did not also include the right to unilaterally obligate the employee to perform the work in a home office - which in the specific case was yet to be set up.
The matter before the court was based on a termination without notice issued by the employer. The employee filing the legal action, an engineer, was supposed to work from home following a plant shutdown. He was not prepared to do so, however, so that the employer had pronounced the termination without notice on grounds of "persistent refusal to work." The State Labor Court, like the Labor Court in the previous instance, held the dismissal to be invalid. In the court's opinion, the circumstances of telework differ significantly from work to be performed in a permanent establishment. The fact that employees may in principle be interested in telework, for example to better reconcile family life and work, would not lead to an extension of the instruction right under Section 106 Industrial Code.
Consequently, only explicit and legally compliant provisions in the employment contract offers employers the possibility of having employees perform their work from a home office either in whole or in part ("alternating telework"). Clear rules on the place of work and on working hours are important. It should be distinctly differentiated as to when work is to be performed from home or as "mobile work" or at the place of business. Such rules may also be flexible and may include agreements that the work is always to be carried out as telework, unless employers instruct employees to work at the place of business on certain days. Such a clause could, for example, read as follows:
"Employee shall perform the work at the employer's place of business [...] on up to [...] days per week. The days of attendance shall be determined by Employer...