From the home office back to the office: What employers should know

While working from home was initially an emergency solution during the coronavirus pandemic, it has now become established in many companies – instead of or alongside office work. However, more and more employers want to get their employees back from the home office to the office (‘return to office’).

But what does labour law have to say about this?

Where and how can the home office be regulated?

There are many different ways in which employers can allow or arrange home office working with their employees.

The rule is then – regardless of the type of regulation – that employees do not have to work at their actual place of work (e.g. office), but can also fulfil their work obligation from home.

But what specific regulatory options are there?

Option to regulate the right to issue instructions or the right of direction

Within the scope of their right to issue instructions or right of direction, employers cannot unilaterally order home office work, at least not on a permanent basis (LAG Berlin-Brandenburg, 14.11.2018, 17 Sa 562/18). 

In this respect, it must be assumed that a one-sided order to work from home is not possible. Because even if it looks like a one-sided order, strictly speaking, a home office arrangement is always based on an agreement between the employee and the employer that has been reached either orally, in writing or tacitly.

The problem, however, is that employment contracts often contain a written form requirement for changes to the employment contract: a change of workplace would then have to be agreed in writing with a signature. However, an exception applies if the change has been negotiated individually between the parties – for example, if the employer and employee agree individually on a specific home office arrangement in an individual case.

Tip: Similarly, employees have no legal right to work from home. This also applies if the employer originally granted this option in agreement with the employee.

Options for regulating employment contracts

Regulations for working from home in the employment contract are much clearer and legally more secure for all parties involved.

These provisions have been increasingly included in employment contracts in recent years: after all, the option of working from home has become a key criterion for many employees when deciding whether to accept a job or not. It is only logical to include corresponding provisions in the employment contract. In new employment contracts, appropriate clauses should be included from the outset; existing contracts can be supplemented with corresponding additional agreements to the employment contract.

Option for regulation: company agreement or collective agreement

Last but not least, home office regulations can also be found in company agreements or collective agreements, but are usually limited to occupational groups for which working from a home office is even possible.

Return to Office: How can employers get employees back into the office?

Whether and how employers can get employees back from their home office to the office or company (‘return to office’) depends primarily on the form in which the option of working from a home office was originally agreed between the employer and the employee and what exactly was regulated.

Return to office by right of direction

If the basis for working from home was an agreement between the employee and the employer (see above regarding the problem of validity due to the written form requirement), the question arises: Can an employer, under certain circumstances, in particular with a corresponding instruction under the right to issue instructions, recall an employee from the home office and assign them a ‘local’ workplace? What would need to be considered in this regard?

A case in point:

The Higher Labour Court in Cologne ruled on a case involving an employee who, with the consent of his employer, worked 80% of the time from home. The employer then revoked this permission and wanted to deploy the employee at a location 500 km away at short notice. According to the Higher Labour Court, neither the revocation of the home office permission nor the notice of dismissal with the option of altered conditions of employment were effective: in exercising the right of revocation under the right to issue instructions, the employer had disregarded the limits of reasonable discretion (Cologne Higher Labour Court, judgment of 11 July 2024, case reference: 6 Sa 579/23). The court ruled that the dismissal with the option of altered conditions of employment was otherwise invalid because there was no urgent operational requirement for the work ‘on site’.

It is therefore clear that an employer’s wish to recall an employee from the host country is subject to legal hurdles and can also be reviewed by the courts. In each case, the circumstances of the individual case are very important – the limits of reasonable discretion or the question of whether a transfer back to the ‘local’ workplace is really urgently necessary for operational reasons.

Return to office per employment contract or additional agreement

If, on the other hand, the home office arrangement is set out in the employment contract or in a supplementary agreement, it is more difficult to get employees back to the office without their consent. In principle, this is only possible if the employees agree to it or if the employment contract or the supplementary agreement contains a revocation clause.

If this is not the case, employers must issue a termination of the employment contract in the event of doubt. However, this termination of the employment contract is only legally effective if the return to the office is necessary for urgent operational reasons.

A case before the Higher Labour Court (Landesarbeitsgericht) in Hamm:

In this case, the employer and employee had reached a supplementary agreement to the employment contract regarding the home office. This stipulated that the employer could terminate the supplementary agreement with notice. Even if the employee did not want to admit it, there is nothing objectionable under labour law about agreeing and exercising such a partial right of termination. This is because such an agreement only concerns the manner in which the contract is performed, but does not unilaterally affect the employee’s main contractual obligation (Higher Labour Court of Hamm, judgment of 16 March 2023, docket no.: 18 Sa 832/22).

Return to office by collective agreement or company agreement

Employers are also generally bound by the provisions of the collective agreement or company agreements and cannot unilaterally order a ‘return to the office’.

This is because collective agreements can only be changed with the consent of the collective bargaining parties. Only if the collective bargaining agreement or a works agreement explicitly provides (unilateral) scope for regulation can employers – again with works agreements or employment contract provisions – regulate ‘return to the office’. If there is no leeway and if it is not possible to reach an agreement with the works council on an adjustment of the home office regulations, proceedings before the conciliation board can provide a remedy. As a last resort, the termination of the works agreement remains.

Conclusion: how employers should behave

If employers want to adjust the applicable rules for working from home and bring employees back to the workplace, it should be well thought out and planned in advance. This is because in most cases, it is not possible to simply order a ‘return to the office’ unilaterally.

It is therefore important to examine regulations on compulsory attendance and home office work in individual cases or in general, in order to clarify the options and conditions for a ‘return to the office’ precisely.