Permission to work from home as a less severe measure than dismissal with the option of altered conditions of employment

Baden-Württemberg Higher Labour Court (9th Chamber), 4 November 2024 - 9 Sa 42/24

The employer does not have to offer the employee a job exclusively working from home in the event of termination for operational reasons. In its ruling of 4 November 2024, the Baden-Württemberg Higher Labour Court decided that the employee is not entitled to work exclusively from home. 

Facts of the case

Following transfers of undertakings, the plaintiff was most recently employed by the defendant as a foreman for final assembly of cooling tower and shipping. He carried out his work from home several days a week. In December 2023, the defendant made the business decision to close the plaintiff's place of employment. 

The plaintiff was then given notice of termination and offered to continue the employment at another location of the defendant under otherwise unchanged conditions. This location was approximately 240 kilometres away from the previous workplace, which was the company's principle place of business. The plaintiff informed the defendant that he accepted the notice of termination, provided that it was not socially unjustified and that it was not mandatory to carry out the work at the new location but from home and that he was prepared, if necessary, to travel to the new location for personal meetings on a monthly basis and in return for reimbursement of travel expenses. 

The Labour Court rejected the main motion for declaring the change in working conditions by the dismissal with the option of altered conditions of employment void. Interpreting the claim, this was an unfair dismissal claim, which was unfounded as the dismissal was socially justified for urgent operational reasons and no other vacant position was available that could have been offered as a less severe measure. 

Decision 

The Baden-Württemberg Higher Labour Court also rejected the main motion for declaring the change in working conditions by the dismissal with the option of altered conditions of employment void. 

The main application was unfounded because the plaintiff did not refer to the changed working conditions but only on continued employment. As the plaintiff had not been working exclusively from home in the past, he cannot have such a working relationship established by the Labour Court. 

In addition, the alternative motion for unfair dismissal was also unfounded. As no contractual arrangements were made, the extent to which the plaintiff may work from home falls within the defendant's right to give instructions. 

In connection with the dismissal with the option of altered conditions of employment, the employer was under no obligation to examine whether working from home would have been a less severe measure. At the outset, the Hihger Labour Court stated that the defendant had not granted the plaintiff to work exclusively from home, as the plaintiff had previously been present at the company one to two days a week. This activity was not comparable to working exclusively from home. 

The plaintiff is also not entitled to such a workplace being established. The right to work from home is limited to rare exceptional cases in which the employer's organisational decision is reduced to zero in accordance with Section 106 sentence 1 GewO/Trade Regulation Act, such as in the case of a disability-friendly workplace, a significant risk of illness or family emergencies. This was not relevant in the present case. 

Conclusion 

In the event of dismissal, rules relating to working from home may be altered and do not require the employee's consent, at least if there is no contractual arrangement to this effect. 

The employer is under no obligation to allow the  employee to work from home if their fomer workplace is no longer available, for example due to relocation. This judgment strengthens the employer's right to issue instructions and their options to restrict working from home and adapt them to their operational needs for efficiency.  

However, employers should give reasons why other activities cannot be carried out exclusively from home. For example, the Higher Labour Court cited the employer's explanations that the required plant plans are not digitalised.