For many employees, working from home has long since become an integral part of their daily work routine. The ability to work from home offers greater flexibility, makes it easier to balance work and family life, and saves time and money on the daily commute. Especially in light of the experiences of recent years, many employees expect to be able to perform their work at least partially from home.
In employment law practice, however, this issue is increasingly becoming a source of potential conflict. Employers are rejecting requests to work from home, demanding a full return to the office, or unilaterally changing existing policies. For many employees, it is unclear what rights they actually have and how far the employer’s decision-making authority extends. This uncertainty is understandable, as there is no blanket right to work from home. This makes it all the more important to understand the legal framework.
This article provides an overview of the rights employees have regarding working from home, when a claim may exist, what limits employers must observe, and when it makes sense to seek legal advice.
Is there a legal right to work from home?
Many employees assume that there is now a legally enshrined right to work from home. However, this assumption is incorrect. Under current law, there is no general legal right to work from home.
Neither the German Civil Code nor specific labor laws generally require employers to allow employees to work from home. Furthermore, political initiatives to introduce such a right have not yet been implemented.
This does not mean, however, that employers can refuse remote work at will. In practice, the decisive factors are the contractual provisions, the company’s policies, and a fair balancing of interests in each individual case. It is precisely here that legal disputes often arise.
Working from Home in an Employment Contract—What Is Legally Binding?
Whether employees are permitted to work from home depends primarily on their employment contract. Many employment contracts now include explicit provisions regarding working from home or remote work.
These provisions can vary widely in their wording, such as permanent work-from-home arrangements, a proportional entitlement to remote work, or a flexible arrangement subject to revocation. If work-from- home is contractually guaranteed, this agreement is binding on both parties. Employers cannot unilaterally revoke or restrict such a provision unless the contract provides for a valid revocation.
However, the absence of an explicit provision does not automatically mean that working from home is ruled out. Supplementary agreements, company agreements, or a long-standing practice may also be legally relevant. It is particularly important to examine these carefully, as many conflicts stem from unclear or ambiguous contract wording.
The Employer’s Right to Direct and Its Limits
Employers generally have the right to specify the nature, location, and timing of work performance. However, this so-called right to issue instructions is not unlimited. It must always be exercised in good faith.
In practice, this means that employers must give appropriate consideration to the interests of their employees when making decisions. An instruction must not be issued arbitrarily or disregard the legitimate interests of employees without objective grounds.
Employers may only unilaterally mandate working from home if this is provided for in the employment contract or if special circumstances exist. Conversely, working remotely may not be denied across the board if there are no operational reasons to the contrary and the work is objectively suitable for being performed from home.
When can employees request to work from home?
Even without a legal right to work from home, there are numerous situations in which employees have a good chance of securing the option to work remotely, at least on a part-time basis.
This is particularly true if the work can be performed entirely or predominantly digitally, if working from home is already established at the company, or if comparable colleagues regularly work from home. Health-related reasons (a “workplace adapted to the employee’s condition”) or family caregiving responsibilities can also play an important role in the balancing of interests.
In our consulting practice, we have observed that employers often reject requests across the board without giving sufficient consideration to the individual circumstances. Such an approach is legally problematic. Employers must review each request on a case-by-case basis and provide a clear and reasonable justification for their decision.
Principle of Equal Treatment and Reasonable Discretion
A key legal standard regarding working from home is the principle of equal treatment under employment law. It requires employers to treat comparable employees equally.
If some employees are allowed to work from home while others are denied this option without an objective reason, a claim for equal treatment may arise. Differentiations are permissible only if they are objectively justified, such as by different job duties or specific operational requirements.
Even when reversing work-from-home policies, employers must provide a clear explanation of why certain employees are required to return to the office full-time while others are permitted to continue working from home. It is precisely in this area that legal disputes frequently arise in practice.
Read more about amending employment contracts in this article.
Works Council Co-determination Rights Regarding Remote Work
If a company has a works council, it has extensive co-determination rights regarding work-from-home arrangements. These include, among other things, regulations on working hours, availability, the use of technical systems, as well as data protection and occupational health and safety.
Without the works council’s involvement, many work-from-home policies are invalid. Employees can therefore also contact the works council if remote work is to be restricted or eliminated.
Working from Home and the Employer’s Duty of Care
Even when working from home, the employer remains obligated to fulfill its duty of care. The employer must ensure that work is organized in such a way that no health risks arise.
This includes, among other things, adhering to ergonomic standards, complying with working hours, and protecting employees from chronic overload. At the same time, employees are obligated to inform the employer of any health issues and to cooperate in implementing protective measures.
Real-Life Examples from Everyday Work
- Example 1: An employee has been working as a project manager for several years. During the pandemic, she worked exclusively from home. Now that all restrictions have been lifted, the employer is demanding a full return to the office without citing any operational reasons. In such a case, there is a good chance that the decision is subject to legal review.
- Example 2: An employee cares for a parent who requires nursing care. His work can be performed entirely remotely. His colleagues are regularly allowed to work from home. A blanket rejection of his request may violate the principle of reasonable discretion.
What to Do If Your Request to Work from Home Is Denied?
If the employer refuses to allow working from home, employees should first seek a discussion and ask for a reasonable explanation. Conflicts can often be resolved at this stage.
If the refusal stands, a legal review is recommended. In many cases, it is possible to reach an out-of-court settlement where the employer reviews or adjusts their decision. Seeking advice early on helps prevent escalation and allows you to realistically assess your rights.
Conclusion: Realistically Assess Your Right to Work from Home
- There is no general legal right to work from home;
- contractual provisions are decisive
- Employers must review requests objectively and on a case-by-case basis
- Arbitrary rejections are not permitted
- Works councils strengthen employees
- ’ positions A legal review clarifies the options available in each individual case.
FAQ – Right to Work from Home: Your Most Important Questions
Is there a legal right to work from home?
No, there is currently no general legal right to work from home. Whether working from home is possible depends on the employment contract, company agreements, and the circumstances of each individual case. However, employers must review requests objectively and may not reject them across the board.
Can I insist on working from home if my job is entirely digital?
A fully digital job does not automatically entitle you to work from home. However, it significantly strengthens your legal position. Employers must consider whether there are actually operational reasons preventing it. An unfounded refusal may be legally challengeable.
Can the employer simply eliminate the work-from-home arrangement again?
That depends on the legal basis. If working from home has been contractually agreed upon or granted unconditionally for an extended period, it cannot be unilaterally revoked. Any revocation should be reviewed from a legal perspective.
Does my employer have to provide a reason for rejecting my request to work from home?
Yes. Employers are required to conduct an individual balancing of interests. A denial must be based on objective grounds. Blanket or arbitrary decisions are not permitted.
What role does the principle of equal treatment play in working from home?
Employers must treat comparable employees equally. If some employees are allowed to work from home while others are denied this option without an objective reason, there may be a claim for equal treatment.
Does the works council have a say in matters related to working from home?
Yes. The works council has a mandatory right of co-determination regarding many aspects of working from home, such as working hours, availability, data protection, and occupational health and safety.
Can working from home be requested for health reasons?
Health reasons can strengthen an employee’s position. Employers must take these into account as part of their duty of care. However, this does not automatically create a right to work from home.
