Working in a home office: Check your employment contract carefully

Published On: 02.January.2022Categories: Working world4 min read
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Christina Schröder writes about legal topics for the Love & Law Blog at Recht 24/7.

Home office offers advantages for both sides: Employees benefit from a more flexible work arrangement, employers save office space and thus rental costs. But there are legal requirements to consider if you want to work from home. This article explains what these are and who can help if you are unclear.

Working within your own four walls

The term “home office” describes an overarching organizational approach to making work more flexible. Usually, working in a home office (also referred to as “telecommuting” or “e-work”) is done from home. In this case, you set up a workstation in your house or apartment and discuss the tasks and goals of your job with bosses and colleagues via e-mail or telephone.

Is there a right to a home office?

No, there is no legal right to work from home in Germany. In principle, the employer decides whether home office work is possible. Pursuant to Section 106 of the Trade, Commerce and Industry Regulation Act (GewO), the employer has the right to determine the place of work of its employees. Exception: The employment contract or the company agreement contains clauses on the subject that you can invoke. To know your room for maneuver, you should have your employment contract reviewed – with us at favorable conditions.

Can the boss order home office?

That is not possible either. The right to direct ends at the door of your home. Your employer cannot force you to use your private rooms as a workplace. He is dependent on your consent (cf. ruling of the Berlin-Brandenburg Regional Labor Court of 14.11.2018, Ref.: Sa 562/18). The following therefore also applies to entrepreneurs: anyone planning to have an employee work in a home office should have their employment contract checked in advance.

What a good employment contract on the subject of the home office contains

Regulations on home office work ideally include agreements on the scope of work in terms of time, availability and the transfer of documentation obligations. Examples include the following:

  • The employer offers trust work without detailed recording, so that the employee can arrange his or her own working hours.
  • The employer’s obligation to document overtime can be transferred to the employee in the context of the home office.
  • In connection with technical occupational health and safety, a ban on the use of private work equipment can be agreed.

Note: The employer is obligated to monitor whether the employee is performing his or her work at home at a properly equipped workplace. For this reason, he may be granted a right of access to your home.

Legal requirements: This must be observed at home

As a general rule, employees must ensure that the labor law regulations on occupational health and safety, data protection and working hours are also observed in the home office. This means in detail:

Working Hours Act

The regulations on maximum working hours, rest breaks and rest periods must also be observed at home. This also includes the prohibition of work on Sundays and public holidays. As an employer, you should point out to your employees that they must comply with these regulations and offer a model for time recording.

Data protection

Working in a home office places high demands on IT infrastructure and data security. Employers must ensure that appropriate data protection precautions are in place and that all data protection requirements are met at all times. For example, only you – not your family members – may have access to the work PC and cell phone and to confidential data at the home office workplace.

Occupational health and safety

The employer must independently determine which occupational health and safety measures are necessary to ensure the occupational health and safety of the employee in the home office. To this end, the employer must conduct a risk assessment. This includes an exact survey of the work circumstances as well as instruction with regard to the specifications of the Ordinance on Industrial Safety and Health for work equipment. In addition, the employer must comply with the occupational health precautions (ArbMedVV for short).

When can employment in a home office be terminated?

First of all, a distinction must be made as to whether the home office agreement was negotiated with one employee or was made for a large number of employees.

If only you are currently working in the home office – for example, because you want to work from home in the year after your child starts school – the termination of home office employment can be agreed upon individually between you and your employer.

If – for example due to Corona – many employees of a company work from home, the termination is not possible without further ado (cf. judgment of the Düsseldorf Regional Labor Court dated 10.09.2014, Ref.: 12 Sa 505/14). The employer must take the interests of the workforce into account. In addition, the consent of the works council is required.

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