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SARS-CoV-2 ++Stop++ Corona Pandemic ++Stop++ Conference of Minister Presidents of 19 January 2021 ++Stop++ Employer's Duty to Enable Home Office Where Implementable ++Stop++ Home and Mobile Office ++Stop++ Implementation by Employer ++Stop++ Works Council's Right of Co-Determination ++Question Mark++

Dear Readers.

Home or mobile office already existed before SARS-CoV-2, but has increased significantly due to the corona pandemic and is (temporarily) obligatory due to the Conference of Prime Ministers of 19 January 2021. Home or mobile offices are organised in different ways and to different extents. But the question is whether and, if so, in what way and to what extent the works council has a right of co-determination. The Higher Labour Court of Hesse (LAG Hessen) reached a decision on this in a temporary injunction proceeding in its decision of 18 June 2020 (5 TaBVGa 74/20).

Initial situation

The employer has introduced mobile working due to the corona pandemic and to protect workers from infection at the workplace. In interim injunction proceedings, the works council attempted to obtain an injunction against the implementation of the "mobile working" model.

LAG Hessen, decision of 18 June 2020 - 5 TaBVGa 74/20

The summary proceedings initiated by the works council were unsuccessful. In the view of the Higher Labour Court of Hesse, the decision of the employer to introduce "mobile working" did not, at least according to the required summary examination in the summary proceedings, involve a right of co-determination of the works council.

The right of co-determination according to Sec. 87 (1) No. 1 German Works Constitution Act (BetrVG) ("matters relating to the rules of operation of the company and the conduct of employees in the company") does not exist in the view of the Higher Labour Court of Hesse. The introduction of mobile work is inextricably linked to the performance of work and is thus part of the work behaviour that is not subject to co-determination. Work behaviour is affected if the employer determines in more detail which work is to be carried out and how this is to be done. Instructions which directly specify the duty to work are not subject to co-determination.

The right of co-determination under Sec. 87 (1) No. 6 BetrVG ("introduction and use of technical devices designed to monitor the behaviour or performance of employees") is also not relevant in the view of the LAG Hessen. In any case, the activity performed in the "mobile office" does not go any further with regard to this right of co-determination than would an activity at the workplace in the company. Regularly, employees use the same technical equipment that they use at the workplace, so that it is not a question of introducing new technical equipment.

In the opinion of the Higher Labour Court of Hesse, the right of co-determination under Sec. 87 (1) No. 7 BetrVG ("Regulations on the prevention of accidents at work and occupational diseases as well as on health protection within the framework of statutory provisions or accident prevention regulations") was also relevant in principle, but there was no sufficient reason to believe that it prevented the implementation of "mobile working".

The works council is thus not entitled to a general independent injunction and the employer may continue to implement its working model without the involvement of the works council.

Warm ++Stopp++ (labour law) ++Stopp++ greetings from Munich ++Stopp++

Yours Dr Erik Schmid

Note: This blog post has already been published in the labour law blog of Dr Erik Schmid at Rehm Verlag (www.rehm-verlag.de).

Experts

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Dr Erik Schmid

Rechtsanwalt, Licensed Specialist for Labour Law

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Arbeitsrecht Mitbestimmungsrecht des Betriebsrats Homeoffice-Pflicht LAG Hessen

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