Germany: News On Desk Sharing – Modern Workplace Design Is Not Necessarily Subject To Co-Determination

Last Updated: 8 May 2018
Article by Christian von Bitter and Katharina Rosbund
Most Read Contributor in Germany, September 2018

In desk sharing setups, employees no longer have their individual workplace assigned to them in their office or in their department but are able to freely choose it on a daily basis depending on their current needs. According to the principle of clean desk policy, employees set up their workplace at the beginning of their work – usually simply by opening their laptops – and take all working materials with them at the end of their workday or lock them away somewhere.

For employers, desk sharing in essence provides a cost-saving opportunity for activities that are regularly not only performed at a desk, but also at customers' sites, in meeting rooms, or in other common areas with colleagues. Examples include sales representatives, consultants, or project staff members. Several employees share one workstation, thus reducing free unused workstations and only making them available to those employees who are present. In addition, desk sharing may contribute to improved internal communication.

The decision whether to introduce and mandate desk sharing is at the employer's sole discretion. The works council has no right of co-determination in this respect. This was confirmed by Düsseldorf Regional Labor Court in its January 09, 2018 ruling (3 TaBVGa 6/17).

In the case at issue, the works council had attempted to apply for a preliminary injunction against the introduction of desk sharing by the employer. Düsseldorf Labor Court rejected the works council's application. The works council's appeal to Düsseldorf Regional Labor Court also failed. Although the works council tried to base its alleged claim to injunctive relief on various provisions of the Works Constitution Act, the court held none of these suitable to justify the application for a preliminary injunction. It is therefore worth reviewing the arguments of the two labor courts, which in substance opposed the works council's application:

First of all, the works council was not able to base its injunctive relief claim on Section 91 Works Constitution Act. According to this provision, the works council may request appropriate action to obviate, mitigate or compensate for burdens where employees are particularly burdened by changes in workplaces, work processes or the working environment that are in obvious contradiction to the established findings of ergonomics relating to the tailoring of jobs to meet human requirements. There was no evidence of such a special burden associated with the desk sharing, however.

The works council's argument that the introduction of desk sharing was an alteration in the company subject to co-determination within the meaning of Section 111 Works Constitution Act was also rejected, since the provision did not give rise to a right to injunctive relief with respect to implementing a change in the company up to the conclusion of a co-determined regulation.

The co-determination provision of Section 87(1)(6) Works Constitution Act was not relevant in the case, either, since desk sharing (obviously) is not associated with introducing or using a technical device to monitor employee behavior or performance.

The co-determination right under Section 87(1)(7) Works Constitution Act was also ruled out. According to this provision, the works council has a right to co-determination in occupation health arrangements in particular. The works council referred to the Workplace Ordinance, according to which the employer is to set up and operate the workplace in such a way that risks to employees' safety and health are avoided or kept to a minimum. If the employer violates the Workplace Ordinance, the works council's right to injunctive relief requires that employees are actually at risk or that such risk has been identified as part of a risk assessment. The works council failed to make the existence of such a specific risk credible, however. It claimed across the board that despite the workplace cleaning that was already performed by an external service provider and the additional provision of cleaning cloths, the joint use of computer keyboards and computer mice would pose a specific risk to employees. It could not make this sweeping assertion credible, however, by submitting a concrete statement of facts. Düsseldorf Regional Labor Court ruled that the works council was less concerned with enforcing health and hygiene regulations with its application for preliminary injunction, but rather that it attempted to prevent desk sharing in general or at least the associated allocation of keyboards and computer mice for joint use.

Finally, the court dealt with the co-determination provisions of Section 87(1)(1) Works Constitution Act. Its applicability in the case at issue was also highly doubtful in the opinion of Düsseldorf Regional Labor Court. Taking into account the previous jurisdiction of the Federal Labor Court, there were concrete indications that the employer's basic decision to no longer assign workplaces individually and the instruction to look for a vacant workplace in the team zone was inseparably linked to the provision of work and was a prerequisite for its proper performance, so that it could not be assigned to the matters giving right to co-determination in accordance with Section 87(1)(1) Works Constitution Act.

Conclusion:

Employers are still free to decide for themselves whether or not to introduce desk sharing. As with the agreement on home office work, however, it must be taken into account that co-determination rights may still come into play where the content of such a decision is concerned. Examples would be the introduction and use of technical devices for monitoring behavior and performance in a shared workplace and the stipulating of rules of conduct relating to order in the workplace. The flexible organization of working hours, which may be accompanied by a flexible workplace design is also subject to co-determination by the works council.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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