The start of the global corona pandemic caught employers and employees unprepared. The working world in particular has faced numerous challenges for which there was no clear legal solution. The measures introduced to fight the pandemic also resulted in an increased number of court cases. Since March 2020, there have been just over 10,000 court proceedings in Germany concerning the protective measures adopted to prevent the pandemic. Relatively few were brought before the labour courts. Still, many much-anticipated judgments of lower courts made headlines.
No right to work from home for employees
The District Court (Landesarbeitsgericht, LAG) of Munich (in a judgment of 26 August 2021 in Case No. 3 SaGa 13/21) held that employers can revoke a directive to work from home if operational grounds are later revealed that prevent employees from working from home. However, the (new) directive from the employer must be “reasonable”. In the case in question, the technical equipment at the employee’s residence was not compatible with that available and used in the employer’s offices. This resulted in problems with using and processing documents and data. In addition, the directive to work from home could be revoked because the employer was not using his own laptop but his wife’s. It therefore could not be shown which data protection measures had been taken to ensure that corporate data was sufficiently protected against attacks from third parties. The LAG Munich also held that there was no general legal right to work from home. It is common knowledge that the political parties could not agree on granting employees such a right, at least during the last legislative period.
In another case, the LAG in Cologne held (in a judgment of 12 April 2021 in Case No. 2 SaGa 1/21) that a requirement to wear a face mask while on the employer’s premises also applied to an employee who had a medical certificate exempting him from wearing a cover over his mouth and nose. In addition, the Court held that the employee had no right to work from home because he did not have the necessary technical equipment available at home. The employer was not required to take technical and organisational measures to enable the employee to perform his work from home.
Employees do not have a general right to work from home. To avoid disputes, employers should always assess whether the employee’s tasks can be performed from home. This is not a question of whether the task could theoretically be performed from home, but a question of whether the requisite technical equipment is available and whether compliance with the data protection requirements can be guaranteed. Technical equipment should be made available to make it possible for employees to work from home. In particular, all equipment should conform to the necessary technical requirements. In other cases, an employee should be asked to show how he or she intends to work from home before any directive to work from home is issued. It will be interesting to follow the developments in a right to remote work through the legislature and see what this will mean specifically for equipment.
Special bonuses may only have repayment obligations in exceptional situations (“Corona bonus”)
The Labour Court (Arbeitsgericht, ArbG) in Oldenburg held (in a judgment of 25 May 2021 in Case No. 6 Ca 141/12) that a so-called repayment obligation clause with an agreed commitment period of 12 months is invalid where the corona bonus granted is EUR 550.00. A repayment clause typically provides that any special bonus paid by the Employer must be repaid if the employee terminates the employment relationship before a specific date. The Court based the invalidity of the clause on the fact that the foreseen lock-in period of 12 months unreasonably disadvantaged the Employee. In addition, the Court held that the repayment clause was invalid because the special bonuses were intended to only recognise company loyalty, but also honour the work that had already been performed. That is what the wording “one-off tax exemption relating to the Corona pandemic” implies. Accordingly, the bonus financially compensates employees and recognises the strain on them during the pandemic.
The judgment of the Labour Court in Oldenburg confirms and consolidates the case law of Germany’s highest Court on special bonuses. If employers wish to grant a special bonus to honour company loyalty (and only company loyalty), the wording of the clause must be carefully considered. Avoid any formulations that give any indication that the bonus might also recognise performance because such wording would prevent the effective agreement of any repayment clause. The following rule of thumb applies to special bonuses, which only honour company loyalty and provide a repayment clause: in the case of small bonuses (up to EUR 100.00), it is not possible to effectively agree on a repayment clause. Repayment clauses may be agreed for bonuses of more than EUR 100.00 and up to the amount of one gross monthly salary, providing the employee is bound for a maximum of three months; where the bonus is equivalent to more than one gross monthly salary but less than two, the maximum lock-in period is six months.
Test requirement within the company
Employers can generally make access to company premises dependent on a negative corona test. This was confirmed by the Labour Court in Offenbach in summary proceedings (judgment of 3 February 2021 in Case No. 4 Ga 1/21). Under a works agreement, where the incidence rate was above 200, the employer restricted access to factory premises to those who could show a negative test. In its judgment, the Court held that the employer is required to protect employees from dangers to their life and health. In particular, under the Occupational Safety Act, the employer has a duty in the current situation to take necessary measures to ensure occupational safety. The measure was also not inappropriate because the test requirements were reasonable for employees in light of the pandemic.
Given the dynamic and changing course of the pandemic, employers must take into account the fact that circumstances have changed since the Labour Court in Offenbach issued its judgment. In the meantime, a considerable percentage of people in Germany are vaccinated. When adopting rules to protect the workforce, as much consideration must be given to this fact as to data protection and discrimination, especially in relation to unvaccinated employees.
Concerning the works council
The following two judgments must be read in light of the works council elections that will be held in 2022 and the complications that corona will cause for the selection of electoral committees and in the conduct of meetings of the workforce:
- Invalidity of an election board appointed in the parking lot?
In summary proceedings, the Labour Court in Weiden (judgment of 18 December 2020 in Case No. 3 BVGa 2/20) deemed that an election board appointed during a spontaneous works council meeting held in the parking lot of the establishment was not invalid. The case concerned the planned initial election of a works council. After three election officials invited all workers to attend a meeting at the company offices to vote for the election board - posting a copy of a hygiene concept and notifying the employer – the Government of the Land put the state into partial lockdown. In the employer’s view, this prevented the works meeting from being held in the company offices. Consequently, the works meeting took place at the planned time, but was held in the parking lot of the establishment instead. The Labour Court in Weiden concluded that the appointment of an election board for a works council election can only be declared void in the case of very grave errors. The right to carry out works council elections is not suspended during the pandemic. The election must be possible without complications, and at the same time, the appointment must be subsequently voidable. Legally, this means that the election was initially valid. The result will be different only where the error in the election procedure is so serious that it results in invalidity. The election must then have “the stamp of invalidity all over it”. In that case, the election would be regarded as never having existed.
The Courts have set a high hurdle for establishing the absolute invalidity of actions taken to prepare for an election. The duty of the employer to provide support continues to exist when the appointment of the election board is voidable. Otherwise, there would always be the danger that the election would be delayed and the establishment would be without a works council. Employers should take their duty to provide support seriously and fulfil this duty – as long as the invalidity is not obvious. Failure to fulfil this duty constitutes unlawful interference in elections and is punishable with imprisonment, §§ 20 (1) and 119 (1) of the Works Council Constitution Act (Betriebsverfassungsgesetz, BetrVG).
- Facilitating online meetings of the works council
A judgment of the LAG in Berlin-Brandenburg (judgment of 14 April 2021 in Case No. 15 TaBVGa 401/21) looked at the prevention of meetings because of the pandemic. In a decision in summary proceedings, the Court held that the employer had to provide the hardware necessary for conducting video conferences. The employer did not have to give the works council money for procurement.
The works council now has a right to be provided with certain requested materials. However, the employer does not have to provide the works council with the funds to acquire the goods. In light of the new rule in § 30 (2) of the BetrVG on the option of holding meetings via video and telephone conference, employers should provide the works council with sufficient resources upon request.
Claim for compensation where ordered to close by the authorities
Hot off the press is the first judgment of the Federal Labour Court (Bundesarbeitsgericht, BAG) dealing with the corona pandemic (judgment of 13 October 2021 in Case No. 5 AZR 211/21). At the previous instance, the LAG of Lower Saxony held that, in the case of an employee with a part-time position (mini-job) who claimed payment for work despite the fact that the authorities had ordered the shutdown of the establishment where she worked, the employer’s operating risk had been realised to the employer’s detriment. The BAG took a different view. Where an employer is forced to temporarily close its establishment due to the imposition of “lockdown” measures by the state to combat the corona pandemic, the employer is not, in the Court’s view, required to continue to pay the employee a salary under the principle of default in acceptance. As an explanation, the BAG stated that the employer does not bear the risk of a loss of working hours when, to protect the public against a severe and deadly disease resulting from a SARS-CoV-2 infection, authorities ordered social contact to be reduced to a minimum and nearly all non-essential facilities and establishments to close. This is not a case of a risk inherent in the nature of the specific establishment being realised. It is for the state to provide adequate compensation, where appropriate, for the financial disadvantages suffered by the employee due to the intervention by the state. If this is not guaranteed in the case of part-time employees, this would be due to a gap in the social security law system.
The judgment of the BAG provides companies with legal certainty and financial relief. It should be remembered that this case concerns an exceptional situation –the “corona situation” – and cannot be directly applied to other facts that don’t involve the closure of establishments due to the pandemic. The general principle that employers bear the operational risks – e.g. in the case of natural catastrophes – can still apply. The full judgment (only the press release is currently available) might provide more information on to what extent the BAG specified the requirements for the employer’s operating risk in detail and which conclusions might be drawn for future cases.
Even if some judgments might seem controversial and the curious facts in some cases possibly suggest a particular meaning, the general overview does identify some commonalities: the Labour Courts were not led astray by the volatile atmosphere in the working world and remained true, in most cases, to the general principles established in the case law of the BAG. Accordingly, many judgments yielded logical results. Moreover, the well-founded argumentation of the Courts means that they have also provided effective equipment to soberly classify strange constellations in the future.
By: Asil Buruncayir and Julia Meler
Due to the large number of labour law cases concerning COVID-19, it was not possible to deal with all of them in this article. Some have already been commented on in past Newsletters (chronological):
Dismissals for operational reasons due to Corona: Judgment of the ArbG Berlin of 25 August 2020 in Joined Cases No. 34 Ca 6664/20, 34 Ca 6667/20, 34 Ca 6668/20 (Newsletter April 2020)
Obligation to wear compulsory face masks: Judgment of the ArbG Siegburg of 16 December 2020 in Case No. 4 Ga 18/20 (Newsletter April 2020)
"Corona-Cougher" as grounds for termination: judgment of the LAG Dusseldorf of 27 April 2021 in Case No. 3 Sa 646/20 (Newsletter June 2020)
Employer’s compensation claim in the case of a 14-day quarantine order: Judgment of the Administrative Court of Koblenz of 10 May 2021 in Joined CasesNo. 3 K 107/21.KO and 3 K 108/21.KO (Newsletter June 2020)