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The new German mobile working Act: a first look

Written by
Kliemt.HR Lawyers, the first port of call in employment law for top-class and future-proof advice.
Authors
Till Heimann
Partner - Germany
Kliemt.HR Lawyers
Germany
13.10.20
6
According to press reports, the Federal Ministry of Labour and Social Affairs (BMAS) has now completed a draft of the so-called ‘Mobile Working Act’ regulating remote work. The draft is certainly well-timed, but is it good legislation? This article analyses its possible practical consequences based on the information currently available.  

1. Legal entitlement to a ‘home office workplace’ (?)

For the first time, the draft law is intended to provide a legal entitlement to at least (!) 24 days of work per year at an off-site workplace.

Background

Up to now, the legal regulations have differentiated between ‘teleworking’, where the employer must permanently set up and equip a computer workstation in the employee’s private residence and make arrangements for it (s2 (7) of the Workplaces Ordinance), and the regular run-of-the-mill workplace. Remote working as such, i.e. occasional work at a workplace other than the company workplace, is regulated to a limited extent or not at all.

What exactly the BMAS actually wants to have the Act govern is quite unclear. The title of the draft law indicates that it does not ‘only’ refer to permanent teleworking jobs: then the law would have to include a definition of mobile working. However, the regulations on health and safety at work and on accident insurance envisaged do not quite fit this approach.

According to the Federal Minister, the right to 24 days is to be understood as ‘the minimum’. In practice, it will likely also be the upper limit wherever companies do not already proactively offer mobile working.

Legislators have also recognised that it is virtually impossible to work remotely in a bakery or a car parts workshop, for example. Therefore, there will be a possibility for employers to put forward compelling operational reasons in order to be able to reject the claim. The fact that this would create a ‘two-tier society’ among employees is apparently not seen as a problem by the legislator.

While the legislator has mirrored the regulation in s9 of the Part-Time and Limited Time Employment Act (TzBfG), the concept of ‘compelling’ reasons is probably even stricter than that of ‘urgent’ operational reasons meaning it would be very difficult for employers to reject the claim, for example, by arguing that the economic burden is unreasonable. This would be a particularly heavy burden for small businesses. It would make sense to exclude businesses and companies up to a certain size from the scope of the law.

A further consequence would be that employers in all sectors in which presence in the workplace is not operationally ‘mandatory’ would have to invest in the infrastructure required for mobile working in addition to the necessary computer terminal equipment, IT security etc. In this respect, a considerable enforcement effort can be expected for the economy as a whole. In any case, transitional periods would be urgently required here in order to avoid this becoming the final straw for companies in dire straits that have already been hit by the Corona crisis.

‘If both parents have a job where mobile working is feasible, I suggest that one parent can take turns working from home for a day every week. This makes family life much easier. ‘

Federal Minister Hubertus Heil

On the basis of the above statement, an explanation is eagerly awaited of how employers of two working parents are to regulate their ‘desired days’ for mobile working appropriately and (within the framework of their respective companies) fairly.

Finally, mobile working during the Corona crisis has shown that successful remote working is in particular a question of the right mindset (on the part of both employees and their managers). Trust on the one hand, and not abusing the newly gained freedom on the other hand are essential. There is a danger that the right to mobile work could send the wrong signals here and cause additional conflicts and not because employers are not prepared to ‘go with the times’.

2. Co-determination

According to the Federal Labour Ministry, trade unions, works councils and works councils should have an enforceable co-determination right with regard to the introduction and organisation of mobile work. Instead of leaving it up to the parties in the company to develop tailor-made solutions where it makes sense for all parties involved, an enforceable ‘duty to regulate’ is now being introduced.

As part of the regulations to be agreed with employee representatives, the BMAS plans to make more detailed provisions on when and how employees must and must not be accessible when working on the move, and how they are to be integrated into the company (e.g. to ensure all information reaches them, they can participate in training activities, etc.).

3. Working time

The Mobile Work Act is intended to oblige employers to record working time  ‘digitally’ (?), following concerns that employees tend to work more rather than less outside the workplace.

Background

Following the European Court of Justice ruling in the case of CCOO/ Deutsche Bank Spain (ECJ of 14.5.2019 – C-55/18, see here , there was widespread speculation as to whether the considerations there also affected German working time law, i.e. whether still complied with European law, or whether there were more far-reaching obligations to record working time.

While the BMAS initially commissioned an expert opinion which presented concrete proposals for amendment (and then another expert opinion which was kept under wraps), practice has already overtaken the legislator. In its judgment of 20 February 2020 (2Ca94/19), the Emden Labour Court (ArbG Emden) took the view that Article 31 (2) of the EU Charter of Fundamental Rights contained an obligation to establish an ‘objective’, ‘reliable’ and ‘accessible’ system for recording daily working time. Infringements could already lead to fines under current German law.

The new draft law would provide for fines of up to EUR 30,000 for employers who fail to comply with the obligation to ‘digitally’ monitor working time. It is not yet known what the minimum requirements for monitoring working time should be, nor to which groups of staff it should apply.

It is true that constant working from a mobile or teleworking workplace can lead to a lack of discipline, which can lead to the blurring of boundaries and a blurring of working life and private life. However, it is debatable whether an imposed obligation to use a ‘digital time clock’ corresponds to the needs of today’s working world or rather could be perceived as coercion or a step backwards is in the eye of the beholder. Companies in which mobile working is part of everyday life typically have no difficulties in this area.

4. Health & Safety

Until now, occupational health and safety law has differentiated between mobile working and teleworking. Only the latter is subject to extensive obligations, in particular the obligation to carry out a risk assessment. The logic behind this is clear: if the employer does not know where an employee is working from, it is difficult for it to assess the risks posed by the mobile workplace (on the train, in a café, by a lake, etc.).

However, doubts already existed in the past as to whether this distinction was in line with European law (in particular the Display Screen Equipment Directive 90/270/EEC), according to which the ‘provision’ of display screen equipment (without further furnishing of the workplace) is sufficient.

‘In the law we make it clear that the employer has to assess the risks arising from mobile work in particular, … define measures and instruct the persons concerned in advance.’

Federal Minister Hubertus Heil

So here the principles are about to change dramatically. However, a whole series of questions subsist as to what practical implementation should look like if the term ‘mobile working’ is taken seriously. Which workplace should the employer assess here: every conceivable one? Typical workplaces according to the employee’s information? Will every employer soon have to carry out a risk assessment for the average commuter train seat?

Against this background, it is also unclear whether the law will even address the issue that employees may wish to do ‘mobile working’ from places that are not solely under their sphere of influence (e.g. rented accommodation that may not be used for commercial purposes; places where co-owners or co-tenants object to the use of the premises, etc.). If these third parties deny the employer access to the premises, what happens to the obligation to carry out a risk assessment?

5. Insurance law, in particular Social Code VII

The Federal Social Court has taken a clear line on the legal situation that has applied up to now: accidents in a ‘home office’ are only subject to statutory accident insurance protection under very strict conditions. In particular, accidents in the ‘border regions’ between private and working life are often not insured.

In practice, well-advised employers who ‘proactively’ offer mobile working have tried to make up for this by offering private group insurance to cover accident insurance, disability benefits and daily sickness benefits. The draft law now intends to close the existing gap in protection and extend statutory accident insurance to employees who suffer an accident while they are on their way from their home workplace to a day care centre, for example.

This logic may be conceivable for teleworking jobs, but how this problem can be solved for ‘real’ mobile working without a fixed workstation will be very difficult to map from a regulatory point of view, if this is the aim of the law at all.

6. What else is missing?

As far as can be inferred, what is not included (or at least not ‘advertised’ in communications on the proposed law so far) is exactly the point that employers have been complaining about for years now: if increased flexibility of working time and place is to be achieved, then the rigid and impracticable provisions of the German Working Time Act (ArbZG) must also be changed. In particular, the legally regulated rest periods and maximum daily working hours are no longer up to date.

Conclusion

According to the information available to date, a ‘good mobile working law’ (which would be in line with the official language of the BMAS) is not on the cards. Instead, there is a threat of further decreased flexibility and increased bureaucracy. This bears little relation to the current understanding of ‘mobile working’ and the increasing trend to self-determination by employees, which has long since become established in practice. It is to be hoped that the pending departmental coordination process will once again lead to significant adjustments to the draft law.