Can employers unilaterally decide to reduce remote work?
Yes. However, for an employer to be able to unilaterally restrict an existing possibility to work remotely, the following conditions must be met:
- Condition 1: The restriction must be regulated in the agreement
The first condition is that the remote work agreement must contain a clause that allows the employer to oblige the employee to work (more frequently) in the office again. A typical clause would be one in which the employer reserves the right in the remote work agreement to restrict the number of working days outside of the office due to operational requirements.
A simple clause in the employment contract allowing a change of the workplace or a relocation is not sufficient. Therefore, if the employer has only reserved the right to unilaterally change the place of work in the employment contract, without expressly providing for a unilateral right to change it in relation to remote work, this does not allow the employer to unilaterally restrict the possibility of remote work.
- Condition 2: The restriction does not constitute a disproportionate burden
The second condition is that the restriction of the possibility of remote work does not lead to a disproportionate burden for the employee.
To illustrate what is meant by disproportionate burden, below is an example:
An employee has a small child. Due to the agreement with the employer that the employee can work from home on Tuesdays and Thursdays, the employee's partner has scheduled their working days on these two days to ensure that the child is supervised every day. If the employee is now deprived of the possibility of remote work, there will be no supervision of the child on Tuesdays and Thursdays. The restriction of remote work would therefore affect the employee disproportionately and — despite the clause in the agreement — cannot be implemented unilaterally.
Veto by the works council?
Anyone who thinks that fulfillment of the above conditions is a "free pass" for a unilateral restriction of remote work will be disappointed if there is a works council established. Even if both conditions are met, a works council (if established) can still veto the restriction.
A veto by the works council is possible if the restriction of the possibility of remote work constitutes a so-called "worsening relocation." Worsening relocation occurs when a change in the workplace leads to a deterioration in pay or other working conditions. In such cases, the possibility of remote work cannot be legally restricted without the consent of the works council.
The curious thing about this is that the works council's right to veto still remains even if the employee has explicitly agreed to the restriction. However, in practice, the works council will certainly not want to block the restriction of the possibility of remote work in such circumstances.
Last option: termination of the agreement?
If the above conditions for restricting remote work are not met, what options does the employer have to make the employee return to the office?
In this case, the termination of the entire remote work agreement could be considered. Depending on the type and structure of the agreement, the termination options include ordinary termination (with the possible option of changed conditions) or early termination for good cause. Once effectively terminated, the employee must immediately return to the office.
Conclusion
It is not easy for employers to restrict work outside the office without the employee's consent. The unilateral restriction of remote work options must be contractually permitted and must not lead to a disproportionate burden for the employee. Even if both of these conditions are met, the works council may still veto the decision. To enable employers to switch from green to red when it comes to remote work, introducing remote work agreements that provide for a explicit unilateral right of restricting remote work (either in full or partially) and getting the works council on board in good time is recommended.
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