Home office in the Corona crisis

Home office in the Corona crisis


Home office and mobile working are not new phenomena. However, due to the current corona crisis, there was a growing demand to work at home during the year. Federal Labour Minister “Heil” even wants to initiate a right to 24 days home office per year. Whether there is actually a right to a home office for the employee [For reasons of readability, the male form was chosen in the text, but the information nevertheless refers to members of both sexes] was recently decided by the Augsburg Labour Court in a decision dated 7.5.2020 – Ref.: 3 Ga 9/20. As a result, many questions arise regarding the home office and labour law.

Homeoffice

There is indeed no uniform definition of the term “home office” to date; it is largely equated with the term “telework”:

“Home office, also known as telework, is a flexible form of work in which employees carry out all or part of their work from their private environment”.

It is important to distinguish between telecommuting and mobile telework. The former is to work exclusively from home. Mobile telework (also known as mobile office) is the term used when working from a fixed location. This means that the employee decides where he wants to work (e.g. in a café, bus or train etc.).

Right for home office

So far, there is no legal basis that gives workers the right to work at home. It is at the employer’s discretion whether or not to grant employees the option of a home office. From the point of view of labour law, therefore, the same regulations must be observed as apply in the company. However, there are currently more and more efforts by the Federal Ministry of Labour and Social Affairs to initiate legal standards.

Decision of the ArbG Augsburg – What was it about?

The plaintiff – a 63-year-old employee belonging to a corona risk group – claimed from the defendant that he performed his work in his home office or, in the alternative, requested an individual office. The Labour Court dismissed the employee’s claim.

A right to a home office and an individual office would not arise either from the employment contract or from the law. It is entirely up to the employer how he fulfils his duty to take protective measures towards the employee.

The employer is obliged to ensure the necessary and required protective measures for employees, how he does this is at his discretion. An individual office or home office is not obligatory. The protective measures may also be provided under appropriate safeguards in an office with several workers.

 

Supplementary agreement, company agreement or telework contract

As soon as you have fixed home office hours, this should be laid down in a contract. There are three main ways of doing this; the supplementary agreement to the existing employment contract, the separate telework agreement or – at collective level – a works agreement.

Important regulatory issues would include

  • Employer’s obligations regarding the equipment of the workplace
  • Data protection and data security at the teleworking workplace
  • Work safety in the home office

 

Obligations of the employer on introduction

If mobile working or home office is introduced in the company, the employer has to fulfil further – to be observed – obligations.

Among other things, the employer must ensure that workers are provided with the work equipment necessary for the proper performance of the work owed. If the employer provides the employee with work equipment (laptop, printer, mobile phone), the employer generally bears the costs of purchase, maintenance and care.

In addition, the statutory accident insurance protection also applies to the home office if the employee works for the employer in the home office.

 

Can the employer control me?

Many employers are sceptical as to whether the employee in the home office actually works productively or not. Using so-called keyloggers, the employer can control mouse movements, surfing behaviour and more. The extent to which this control is compatible with the applicable rules on data protection is and remains questionable.

In principle, the employer can only carry out a check of this kind with a justified purpose. A justified purpose is given, for example, if there is concrete suspicion of a breach of duty.

Wenn Sie Fragen haben, wenden Sie sich bitte an uns und lassen Sie sich von uns beraten.


Going to Switzerland to save money?

Foreign authentications in Switzerland – To save costs in Switzerland?

In Germany, notary fees are prescribed by law and are generally based on the notarised value. In company law in particular, this may well lead to relatively high notary fees. In Switzerland, on the other hand, notary fees are freely negotiable – so it is quite possible to agree on much lower fees.

 

However, it has long been disputed whether and to what extent Swiss certifications are permitted in Germany. Notarisation by a foreign notary is always permissible if the foreign notary is equivalent to a German notary and the notarisation procedure corresponds to the German procedure. While the case law on marriage contracts and real estate contracts is very tolerant and affirms equivalence for many Swiss cantons, it has so far been extremely restrictive with regard to corporate law transactions such as formation, conversion or transfer of shares.

 

Can share transfers now be notarised in Switzerland?

Until the German Act to Modernise the Law on Private Limited Companies and Combat Abuses (MoMiG) came into force in 2008, transfers of shares certified in Zurich-Altstadt, Basel-Stadt and Zug were considered equivalent in consistent case law and thus permissible in Germany. With the introduction of MoMiG, however, legal obstacles were placed in the way of this practice. Since then, §40 II GmbHG in particular has laid down special requirements for share transfers. For this purpose, it is now mandatory to submit the new list of shareholders to the register court. In its decision of 17.12.2013, Ref.: 99 AR 9466/10, the Federal Court of Justice (BGH) decidedly rejected a blanket rejection of the equivalence of the submission by a foreign notary, but at the same time neither established general equivalence in the case of share transfers by Swiss notaries nor did it standardise concrete requirements for equivalence. Consequently, the assignment of shares in Switzerland was associated with great legal uncertainty.

 

What has changed following the decision of the Berlin Court of Appeal of 24.01.2018, Ref.: 22 W 25/16?

 

In that decision, the Kammergericht Berlin held that the establishment of a German GmbH by notarisation in Switzerland was permissible. The significance of this decision is grave. Up to now, it was assumed that at most transactions between two or more parties in need of notarisation could be notarised abroad, but certainly no transactions changing the organisation’s statute such as foundations or conversions. After all, such transactions have a much more far-reaching effect than changes in ownership. However, this decision now firmly contradicts the prevailing view and may even pave the way for the notarisation of mergers and restructurings in Switzerland. But beware: The equivalence of the GmbH foundation certified abroad was initially only established for the Canton of Bern.

We will keep you informed of developments in this respect. Wenn Sie Fragen haben, wenden Sie sich bitte an uns und lassen Sie sich von uns beraten.

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