The spread of COVID-19 confronts companies with various challenges.
On the one hand, they must ensure the health and safety of their employees, while on the other, they must continue operating their business as much as possible.
Almost all companies are currently reacting to the pandemic by recommending or even instructing their employees to work from home. As a result, thousands of employees in Germany (and beyond) are currently no longer working at their usual business premises.
In addition to practical difficulties, such as ensuring employees have the right hardware and access to the necessary IT infrastructure, there are also a number of legal challenges that companies have to face when implementing home working (see our briefing from 13 March 2020).
It’s important that employers get this right, particularly as it could be some time before employees are permitted to return to their workplaces again.
No legal regulation on moving to home working
German statutory law is silent on whether employers can instruct employees – and whether employees are entitled to – work from home. Instead the legal basis is either the employment contract or a collective agreement.
If the employment contract or collective agreement does not cover home working, a unilateral instruction by the employer is not likely to be valid, as the employer cannot dictate how employees use their private living space.
However, working from home does require that the workplace is generally suitable for rendering the services from there, including having the right equipment. In this context, it’s important to comply with data protection rules, data security and co-determination rights.
Compliance with data protection regulations
Despite the current crisis, companies should keep in mind data protection regulations when implementing Home Office, because when working from home, personal data of other employees, customers or suppliers are often processed.
Protection of such kind of data is covered by data protection regulations (in particular GDPR and the Federal Data Protection Act). This is especially true as it is clear that work from home will continue for the weeks to come.
The employer, as the controller in terms of data protection law, is responsible for compliance with the relevant regulations regarding this personal data and must avoid violations of data protection rules.
In particular, it must be ensured that technical and organisational measures are applied to the home-working environment (e.g. granting access to certain databases only with password protection).
Data protection is one aspect, data security is another. The latter is primarily dealing with the protection of confidential and often sensitive company data, which will often constitute company, business and/or trade secrets. This data security should also be guaranteed when transitioning to working from home.
This may require access to the employee's home by the employer under certain conditions. However, a specific agreement should be reached with the employee in this case.
Overall, technical control mechanisms should be more practical than physical access rights – especially when free movement is highly restricted. These control mechanisms include remote access to the employee's workplace.
As for monitoring the behaviour and performance of employees, works council co-determination rights apply. These can be exercised through either a formal or informal agreement.
In addition, security measures for the transportation, transmission and destruction of data are important. Employers should make it clear that employees should only take paper business documents home with the employer’s consent.
In addition, to prevent unauthorised third parties from gaining access to the employer’s sensitive business secrets, employees should not dispose of business documents in their private household trash (e.g. after being printed out at home).
Participation rights of the works council
Under German employment law, the works council must always be involved in the planning and execution of home working. Once the works council has agreed to these arrangements, implementing home working should done in accordance with that agreement.
In the event that working from home has been implemented without the works council's involvement - for example due to urgency - the following applies:
The German Works Constitution Act (Betriebsverfassungsgesetz) distinguishes between urgent cases on the one hand and emergencies on the other. In emergencies, the co-determination rights of the works council may be temporarily disregarded in favour of immediate unilateral regulation by the employer.
However, the works council must be informed about the emergency and the provisional measures. In addition, the employer should make up for the works council's participation if the measures are to continue in the future.
However, an emergency only exists in absolute and unforeseeable extreme situations (such as fire or the imminent threat of an explosion on the company premises). As things stand at present, the corona crisis and its consequences do not yet qualify as an emergency. This also applies to an imminent insolvency of the company resulting from the crisis.
Instructions to work from home due to the pandemic are more likely to be classified as urgent cases. This does not mean, however, that the co-determination rights will lapse; the works council is merely obliged to co-operate with the employer to allow measures to be taken.
This may be different if a pre-agreed framework agreement exists between the works council and the employer that allows the employer to issue unilateral orders in urgent cases under the conditions set forth in the framework agreement. Companies should carefully consider whether this is the case.
As a result, an attempt should be made to reach a fast and unbureaucratic agreements with the works council (which should any case be done if home working has already been set up without the works council's prior consent).
When involving the works council, the exercise of co-determination rights does not have to take place solely in the form of the works agreement (to be concluded in writing). Rather, an (informal) regulatory agreement can also help here.