Home office forever? How employers bring their employees back to the office
Many companies which have requested or allowed their employees to work at home in whole or in part over the past years are now having difficulties ordering them back to the office. The Hamm Regional Labor Court has now decided that it might be admissible, under certain circumstances, to unilaterally withdraw the option of working from home by partial termination.
In the present case (Hamm Regional Labor Court dated March 16, 2023, 18 Sa 832/22), the parties had concluded an additional agreement regarding the work in the home office. Such agreement included both a limitation of the work in the home office and a corresponding termination option subject to a one-month notice period with the consequence that, after such termination, the employee would be required to perform his work at the company’s premises again. After the employee had been ill for a longer period of time, the employer made use of this termination option. The employee filed a complaint against this.
In the court’s opinion, unilateral changes of an employment contract’s provisions against the will of one party are generally not possible. This also rules out the termination of individual contractual terms, the so-called partial termination.
In exceptional cases, however, partial termination of individual contractual agreements may be asdmissible if the terminating party has been granted a contractual right to do so. In such case, the terminating party would only exercise a contractual right and not unilaterally change the contractual provisions against the other party’s will.
In the present case, the possibility of partial termination also did not constitute a circumvention of mandatory employment protection law, because it did not concern the main contractual obligations in a reciprocal relationship. The place of work performance is basically covered by the employer‘s right to give instructions and does not concern the employee’s performance per se.
Practical advice on the home office agreement for employers
You should always explicitly regulate the permission of home office work in a contract. If you as an employer do not want to be bound forever by the fact that employees are allowed to work from home, you can either limit the term of the home office agreement from the outset. Or, since some employees might not want to accept the time limit, we strongly recommend a termination provision regarding the work at the home office or a revocation clause specifying the reasons for revocation.