The end of mandatory home office – What changes, what stays the same?

 From labor law to cyber security – the legal pitfalls of mobile and hybrid working.

The end of mandatory home office – What changes, what stays the same?

Mandatory home office comes to an end on March 20. The corona pandemic has revealed both the advantages and the disadvantages of working outside the office. That is why many companies intend to continue enabling hybrid work. What are the key legal issues when employees work both at the office and also remotely?

Home office is a double-edged sword

Less time spent stuck in traffic jams and on the other hand redder flexibility and more time for family or sport. According to a study carried out by the IT security provider Ivanti, around one quarter of the employees surveyed would resign if they were forced to return to the office full-time. However, the corona pandemic has also revealed the negative sides of working from home. 65% of female office workers and around one third of the men stated that remote work had a negative impact on their mental health. They suffered from a lack of contact with colleagues and the team spirit suffers.

However, the increased danger of hacker attacks has created the greatest need for action. Estimates by the German Economic Institute based on a survey by the Bitkom digital association indicate that German companies suffered damages amounting to more than €52 billion as a consequence of cyber attacks on employees working from home last year.

More and more companies are moving towards hybrid workplace concepts to combine the best of both worlds. The following checklist provides HR managers with an overview of the most important legal pitfalls arising from mobile and hybrid working:

1. Protecting data and business secrets

The Business Secrets Act stipulates that companies must implement appropriate measures to protect their knowledge, and be able to provide proof of these measures. Otherwise, claims for damages cannot be asserted if a cyber attack occurs. It is important to remember that data protection regulations, specifically the GDPR, also apply when working remotely. Employers remain responsible for ensuring that these regulations are complied with.

In addition to appropriate technical and organizational measures to protect both data and secrecy, such as encryption systems or password regulations, companies also need to conclude written agreements governing the security precautions with their employees. It is important to conclude agreements stating that third parties do not have access to company devices, and that data may not be stored on private devices. In this context, we also recommend creating a guideline regulating data and secrecy protection within the company.

2. Make contractual arrangements covering mobile or hybrid working

If the company has not yet implemented regulations governing remote work in its employment contracts, a collective agreement or a company agreement, HR managers are now confronted with the issue of whether they can order employees to return to the office or the company following the end of mandatory remote work. As we have already reported, employees are not fundamentally entitled to work from home or remotely. This is also reflected by an injunction issued by the Ulm Labor Court (Ref. 1 Ca 1/21). In accordance with their right to issue instructions pursuant to § 106 (1) Trade, Commerce and Industry Regulation Act, employers have a general right to change the place of work if operational reasons arise that argue against remote work. According to the Munich State Labor Court, this applies if, for example, the technical equipment in the employee’s home office does not match office standards. In this specific case, the employee had also failed to demonstrate that the data was protected against access by third parties and his wife who works for a competitor (Decision dated August 26, 2021, Ref. 3 SaGa 13/21).

The decision by the Munich Labor Court from August 27, 2021 regarding remote work abroad is also based on the employer’s right to issue instructions. According to this decision, an employee was not entitled to her employer’s approval for four weeks of continuous remote work while she was with her partner in Switzerland.

Generally, milder measures than exercising right to direction are a more effective approach. These can include a meeting with the employee or transitional quotas specifying how much time the employee has to spend on site. This prevents all of the employees from having to return at the same time. These solutions also help in the opposite case: For example, an employee insists on returning to the office full-time or for specific days, yet the company has reduced its office space during the corona crisis.

To prevent these disputes from being taken to court, and to ensure that the regulations are legally secure, HR managers need to include a clause governing mobile or hybrid work in employment contracts. In the case of existing employment contracts, we recommend concluding suitable supplementary agreements.

3. A company agreement is not sufficient

If companies have a works council, we also recommend concluding a works agreement regarding mobile or hybrid working. According to the new co-determination conditions outlined in § 87 (1) No. 14 of the Works Constitution Act (BetrVG), the works council can even demand this with a view towards how remote working is carried out, for example to regulate working time, availability of employees, and technical equipment.

Pioneers are already moving away from specific percentages and hourly targets for remote work and an attendance culture, and are instead increasingly focusing on a culture of results combined with trust-based working hours. This even applies to the hierarchy below managing directors and senior department heads. Given the sheer scope of the issues that need to be addressed, however, a works agreement alone is inadequate, and the terms need to be additionally set forth in employment contracts specifically.

4. The Working Hours Act and Occupational Safety Act also apply when working from home

Despite the trend toward greater freedom regarding working hours and working locations, the laws governing working hours and occupational health and safety still apply. Accordingly, the maximum working hours must be complied with in the working hours recorded. As we have already reported, the Federal Ministry of Labor is currently working on drafting legislation for digital timekeeping. Furthermore, the Ordinance on Workplaces stipulates that measures to reduce risks are necessary in order to prevent back complaints and muscular tension.

Only employers are entitled to determine whether employees work from home or even from abroad. However, if employers enable transitional options for employees to return from home office rather than rigidly enforcing their rights, this should ensure a better working atmosphere of the company. To prevent conflicts before they ever arise over the long term, HR managers need to provide clear and legally sound frameworks for mobile or hybrid work in company agreements and employment contracts.