The scope of the right to give instructions is often the subject of disputes between employer and employee or with the works council on the scope of its right of co-determination. Rarely does it matter in what form it is exercised. A recent decision deals with instructions via SMS text during an employee’s free time.

According to German law, the employer determines the content, place and time of the work performance at its reasonable discretion within the framework of its managerial rights. The ‘time of the work performance’ does not refer to the duration, but rather the timing of the working time. For example, the employer is authorised by virtue of its managerial authority to issue instructions and unilaterally change the timing of the working hours.

However, the employer’s right to issue instructions is limited by equal treatment law, occupational health and safety law, collective agreements and company agreements, as well as through the employment contract itself. The question arises as to whether the employer can also issue instructions during an employee’s free time. A regional labour court recently made it clear that employees do not have to take business calls or read SMS texts or e-mails from the employer in their free time.

The court had to decide whether an emergency paramedic had to react to a short-notice change in the duty schedule for the following day where the notice was sent outside of the employee’s working hours. The employee could not be reached by phone and SMS in two cases and by email in one case, and he reported to work as originally assigned rather than at the earlier time called for by the messages. The employer saw this as an unexcused absence and first issued a warning and then a further warning, deducting the hours not worked from the working time account.

The court ruled in favor of the employee. It held that the warning must be removed and the missing hours credited to the working time account. The employer exercises its right to issue instructions or directives by means of a unilateral declaration of intent that must be received by the employee. The notice must reach the recipient in such a way that he or she has the opportunity under normal circumstances to take note of the content of the declaration. This can include facilities such as mailboxes, post boxes, email boxes or answering machines. However, the employer has the burden of presentation and proof for the receipt of the instruction by the employee.

Changing a schedule is an exercise of the employer’s right to give instructions to the employee concerned. The change must therefore reach the employee. However, according to the court, an employee is not obliged to inquire during his or her free time whether the duty roster that applied before the start of the free time phase has been subsequently changed. The employee is also not obliged to accept a message from the employer, for example by telephone or SMS. This is considered work performance and is therefore part of the working time. If the employee does not take note of information about a change in the roster, this will only be sent to him at the start of the shift (according to the original schedule).

The court also saw no improper behavior on the part of the employee. Leisure time is characterized precisely by the fact that employees do not have to be available to the employer and can decide for themselves how and where they spend their free time. The court stated that it is one of the ‘most important personal rights that a person decides whether he or she wants to be available to during this time or not.’ Even the minimal amount of time required to read an SMS does not justify any other conclusion, according to the court.

However, a different rule may apply if the employee had to expect the employer to issue legally relevant declarations or if he or she thwarts receipt of the instruction, for example if the employee, aware of the possibility of changing the work schedule, does not accept a letter or message from the employer.

Employers must ensure (and, if necessary, be able to prove) that the employee has actually taken note of an instruction when exercising the right to give instructions outside the employee’s working hours. Otherwise, non-compliance by the employee will have no consequences and cannot be considered as a breach of duty. If a schedule is changed during the employee’s free time, there is a further risk that the employer will fail to accept the work offered by the employee according to the original schedule and will have to continue to pay wages despite the employee’s non-deployment.

The situation could be different if communication by SMS or email with an employee is common and regular practice, and even more so if the employer asks for a read receipt or if the employee also regularly uses this medium as a communication channel with the employer. However, general statements should be difficult in this respect. As always, the assessment in each individual case will be decisive.