In times of Corona always want to work more and more workers from home. However, the work in the own four walls has a number of “special features”. These features and let us say, the possibilities for abuse, in turn, throwing some right to ask, especially in the area of labour law. One of these questions is, what control the employer is actually with regard to the work in the Home Office. About the author
Wolfgang Gottwald is a specialist lawyer for labour law, commercial law and company law.
1) Previous case-law,
The issue of how the employer may monitor the behavior of its workers, is also in operation, i.e. in the office or business premises. Think of the case in a Department again and again things get out of.
There are, for example, questions such as:
the employer is Allowed to make up two video cameras? Only with an appropriate note (“This area is under video surveillance”), or face-down? He needs the consent of the works Council? This applies even if the suspicion is directed against a member of the works Council, perhaps even against the works Council Chairman?
Or: A worker logs on again and again, unable to work sick. Now he was but a colleague in (combat)sports is observed. Or as a temp at the register in the competition. …
To these questions there is extensive case law. Out I went, a decision of the BAG from the June 2017 (2 AZR 597, 16), in the Surveillance of an employee by the employer, officer Detective. Here, the O-tone of the BAG with regard to the crucial question of law, with highlights by me:
“The collection of data related to intervention in the General right of personality of the employee must also … keep a weighing the interests of both parties in accordance with the principle of proportionality This requires that the intervention is required and taking into account the guarantee of freedom rights made is appropriate , in order to achieve the desired purpose <strong There is no – may>, to achieve our goal are equally effective and the personality rights of the employees less restrictive available means available.
The proportionality in the strict sense is not preserved, if the Severity of the intervention in the case of a total consideration except for the ratio of the weight of the right reasons is The (measure) must not constitute an excessive burden for the employee and must correspond to the importance of the information interest of the employer. Then one of the (hidden) video surveillance, there must be intervention intensive measure for the investigation of a serious, but not criminal breach of duty, as well as to the detection of crime … in the event comparable to a concrete fact-based suspicion of the Existence of such a breach of duty . the An undercover investigation “into the blue”, whether an employee behaves in breach of its duty, is … inadmissible.”
2) And what is now in the Home Office?
The above Considerations also apply in the Home Office. Here, too, the employer has a legitimate interest in ensuring that the employee is working during paid working hours and not to surf around for entertainment purposes on the Internet, in front of the TV sitting, Laundry or a walk in the Park goes. The difference and also the core of the problem is that the workers in the Home Office is removed from the field of view of the employer, to a large extent.
What comes in in the Home Office in addition to the protection of the General right of personality in favor of the employee, is the protection of the own home (article 13 basic law). When even the bailiff for the enforcement of final judgements requires a court order to enter the apartment of the debtor, then all the more that the employer is only allowed to enter in the rarest of cases, the apartment of the employee against his or her will. Actually an entry is against the will of the right holder in principle unthinkable.
a Clear statement by the DGB legal protection: (The employee) must allow his employer … no right of Access to his apartment/house. The authority of the chief ends at the door of the employee. So the employer can make any on the spot inspection.
And if you have agreed to the entry right in the agreement, via the Home Office contract? It is well known, the (Latin) principle: volenti non fit iniuria, i.e. the person who has consented to, is done no injustice.
This principle, however, is problematic in the right conditions in which a Treaty partner to the other in terms of force (far) superior. The employees is truly voluntary, if it be permitted to the employer in a Home-Office agreement the access to the apartment? It is precisely in the labour law no balance of forces, but the employee is typically protection is particularly needy. This may in some cases be quite different, for example when it comes, sought-after specialists to recruit. In principle, however, I think you must be on the work very carefully-if in fact, any consent by the employee is voluntary. See also § 26, paragraph 2 of the BDSG: the voluntary nature of the consent to the processing of data.
another Problem occurs, if the employee is the sole owner of the house on the right. This constellation will often be given, if the employee lives together with others, for example, with his spouse or partner. Then the house is entitled also to the Partner, and this will not agree to a rule that the employer (of the other) enters the common housing or the joint house.
control options appear to be more likely when it comes to the area outside the apartment of the employee. So it is under the above-mentioned (strict) conditions, it is conceivable that the employer, for example, by a Detective monitor whether the workers during Home-Office working time is actually in the Home Office, or whether it is for shopping or for the competition works.
However, you will need to for such a monitoring measure, as a condition just require a concrete suspicion (of a serious breach of duty) is present. For example, if a colleague of the worker reports that the worker concerned while the Home Office working time is regularly at the gym, it seems to me reasonable to leave this review. The Review appears to be a private Detective these days is almost as “old-fashioned” as hunting with a Mace and spear. There are a variety of other technical means of Monitoring, to check whether the workers during Home-Office working is actually on his Computer and what he’s doing there, specifically.
Also, or just the technical monitoring possibilities must always be checked carefully to determine whether they intervene too far into the personal rights of the employee. Moreover, it is also important to note here, if necessary, the co-determination right of the works Council to.
3) conclusion
the Home Office can be both for the employee and for the employer is advantageous. Since it’s particularly abuse-prone, it requires a certain amount of trust on both sides. The control of the employer regularly at the doorstep of the employee. Outside of the constitutionally protected area of your own home, there are no differences in comparison to the previous legal situation. It is always to make a balance with the personality rights of the employee, especially in regards to privacy.
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