Many employers have faced challenges in dealing with the pandemic. To prevent further infection and contain the spread of the virus, home office and mobile work became widespread initially. With the gradual lifting of travel restrictions, a mixture of work, leave and travel (sometimes known as ‘workation’) has emerged, but has led to employment law problems.
Meanwhile, many organisations are now insisting on a (partial) return to the office. But many employees do not want to say goodbye to the cherished freedom of mobile working and ideally, some would like to work from holiday destinations. Do employers have to approve work abroad? The Munich Labour Court of Munich has ruled they do not (judgment of 27 August 2021 – 12 Ga 62/21).
Due to the pandemic, an employee had been working from home in Munich since June 2020. At the beginning of May 2021, she applied to her employer to transfer her home office to Switzerland for one month from the end of May 2021. The employee had been living in a partnership with a Swiss man who was based in Switzerland for years. She wanted to work from her partner’s flat in Basel and they wanted to exercise the fundamental right to family life together there. Even before the pandemic, she had had spent several longer periods in Switzerland, during which she had also worked. Many of her colleagues also worked from abroad; in particular, one of her superiors worked from Switzerland.
The defendant, her employer, was an IT service provider with several locations in Germany. It rejected her application in view of the legal issues and risks associated with foreign employment. The employee then applied for an interim injunction under which, if granted, her employer would have to authorise her to work abroad from Switzerland.
The Labour Court in Munich rejected the application with persuasive reasoning.
The Court ruled the employee had no claim to be allowed to work temporarily from Switzerland. The employer had exercised its right of direction with regard to remote work in Munich without objecting. The employer could determine the content, place and time of the employee’s work performance in more detail at its reasonable discretion, to the extent that these working conditions were not stipulated by the employment contract, provisions of a works agreement, an applicable collective agreement or statutory provisions. Neither the employment contract or a current company agreement on remote work included permission to work abroad. On the contrary, the company agreement on telework contained a prohibition on work abroad, reserving the right to authorise it.
The employer’s discretion was also not reduced to the extent that the employee was allowed to work from abroad. The employee had no right to demand that her employer continue its previous (possibly careless) approach to working from abroad. This was because it involved work abroad by employees that was more than occasional and short-term, triggering the need for legal clarification in matters governed by foreign and international law. It was therefore acceptable if the defendant employer decided it was not willing to bear the very considerable costs associated with this (for example, expert opinions or obtaining legally binding information).
The Munich Labour Court has clarified a question on remote working that is both important and relevant in practice. In principle, there is no entitlement to ‘workation’ or right to work from home abroad. It remains the case that the employer determines the place of work, not the employee. Employers who want to allow their employees to work abroad should keep an eye on the complex issues involved (registration regulations, work permits, visas if necessary, effects on labour law, social security law and wages and tax law, etc.) from the very beginning.
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