Under German law, employers need to ensure they use decisive wording in agreements for mobile working, home office or teleworking to avoid possible pitfalls. Although these terms are often used as synonyms, under German law, they may have different legal consequences, especially for employers.
Only the term ‘telework’ is defined by law. Pursuant to section 2.7.2 of the German Workplace Regulation (ArbStättV), tele-workstations are Display Screen Equipment (DSE) workstations installed permanently by the employer to the employee’s private sphere. The employer has stipulated weekly working hours – agreed with the employee – for the duration of the installation. A tele workstation is not set up by the employer until the employer and the employee have stipulated the conditions for telework in a contract of employment or in the framework of an agreement. The necessary fitting outside of the workstation with furniture and work tools including communications equipment would be provided and installed to the employee’s private sphere by the employer or a person commissioned by them.
In contrast, the much more frequently used terms ‘home office’ and ‘mobile working’ are not regulated by law. In practice, mobile working is regularly referred to when the employer instructs the employee to temporarily carry out their work at a location outside the workplace using mobile work equipment. The employee can decide where they want to work, for example from a hotel or even from a train. A home office, on the other hand, is when the employee works from his or her home. The decisive difference between home office and mobile work is that, with mobile working, the employee can work from any location, whereas with home office one regularly works from one's own home. Mobile working can therefore include work in a home office.
However, the wording does not link home office work with mobile working and it is also not telework if the above-mentioned requirements are not met.
Legal consequences arise especially regarding questions of occupational health and safety. For example, the Workplace Regulation with its requirements for occupational health and safety only applies to the model of telework, not to mobile working and not necessarily to the home office (if this is not a telework place set up by the employer). The Workplace Regulation places special requirements on the employer, such as carrying out a risk assessment if necessary and with expert advice, according to section 3 ArbStättV. This risk assessment, in turn, must be documented by the employer prior to admission. There are also requirements for telework to be used at visual display unit (VDU) workplaces (Annex No. 6 ArbStättV). These requirements do not have to be fulfilled for mobile working, which considerably minimises the effort involved in implementing such work location models.
All employers, whether Germany or foreign, with German employees are affected by this regulation and have obligations to fulfil.
Therefore, if employers wish to offer their employees such possibilities of flexible working, they should use the correct terminology from the beginning and seek advice on the legal and factual particularities that may arise, especially regarding occupational health and safety, data protection and liability.
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This article was produced by Stefanie Andrelang, Specialist lawyer for labour law at Keller Menz, Germany, a CELIA Alliance member firm.
CELIA Alliance members are identified here. Members of the CELIA Alliance are each independent law firms and do not practice law jointly with any other member of the CELIA Alliance. "CELIA Alliance" and "CELIA" are not trading names. For more information about the CELIA Alliance click here.
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