Home office or mobile working as a flexible form of work has become an integral part of the reality of many employers.
The flexibility associated with home office work offers numerous advantages for both employees and employers, such as a better work-life balance and reduced operating costs. Employers can also recruit talent from a larger geographical region.
However, mobile working in the home office also brings challenges, particularly with regard to the control and efficiency of work performance. One issue that crops up again and again in practice is the potential misuse of the reduced control associated with home office work, be it through inadequate fulfillment of work tasks or other misconduct. Employers must therefore consider what legal and organisational measures they can take to ensure that the advantages of mobile working in the home office are not undermined by misuse.
If an employer specifically determines that the performance of an individual employee continuously declines while working from home (as compared to normal office work), the question arises as to how to respond appropriately.
Employee discussions and setting of goals
If performance deficiencies are identified, this should be addressed and documented immediately. To do this, a conversation should first be held with the employee concerned to communicate that there is a lack of performance or poor performance. Ideally, this should be done with appropriate evidence. This gives the employee an immediate opportunity to comment.
A confidential conversation can help to identify the reasons for the lack of performance. This should also include discussing whether there are personal, technical or other difficulties that are affecting performance, so that a solution can be found together relatively quickly if necessary.
During the discussion, employers should also make clear what is expected in the future. To do this, the employee should be given clear goals that must be achieved within a certain time period. This should be recorded and signed by both parties, and the record of the discussion should be kept. Regular feedback discussions can send a clear signal to the employee.
Reduction or cancellation of the mobile work
If the employee's behavior does not improve after the discussions, the employer should examine legal options to reduce the home office work in order to 'stabilize' the employee's work performance, or even to terminate the remote work arrangement. The regulations on remote work set out in the employment contract or in a works agreement are relevant here.
The works council's right to co-determination must also be taken into account. The decision to completely end mobile work is made solely by the employer. However, a reduction in the proportion of mobile work in total working hours (e.g. only one day of home office per week instead of the previous three days) could potentially be considered a substantive 'design of mobile work' issue within the meaning of the legislation governing the co-determination rights of works councils. A supreme court decision on this issue has not yet been made.
Warning
In the event of a breach of duty, the employer can issue a formal warning. This formal warning gives the employee another chance to correct their own behaviour by pointing out further employment law consequences (up to and including dismissal) if they do not improve their performance.
Termination of employment
Depending on the severity of the allegations or the existing suspicion, the employer can also issue an immediate (extraordinary) termination. However, it is important to note that in the case of a termination based on suspicion, the employee must be given a hearing as a prerequisite for the termination to be effective. The employee must be given the opportunity to refute the grounds for suspicion and to provide exculpatory facts.
In a subsequent legal process, the employer generally bears the burden of proof as to whether and to what extent the employee is not fulfilling work duties. According to a decision by the German labour court, this also applies to home office work. Therefore, the employer must carefully record the employee's non-performance or underperformance, the conduct of discussions with the employee, and the setting and (non-)achievement of goals.
Faking the performance of work is generally likely to constitute a serious breach of duty, specifically time fraud. Such behavior (e.g. providing false information in the employer's time recording system) is generally likely to seriously undermine the relationship of trust between the contracting parties. The Federal Labour Court therefore recognises time fraud as an important reason that can justify extraordinary dismissal.
Takeaway for Employers
Flexible working arrangements will continue to play a major role in the future, which is why it is crucial for employers to find a balance between trust and control. To minimise the risk of employees' performance declining when working from home, it is essential to set clear rules and expectations.
Employers should also continually adapt their strategies and review the effectiveness of their measures in order to create a productive and trusting working environment in the long term. Future developments in digital surveillance technology could offer new ways to counteract abuse without compromising employee trust.
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.