Germany Update: Navigating Employee Accessibility in the Age of Mobile Work

In times of mobile working and home office, the question of accessibility for the employer is more relevant than ever. At the same time, especially in these cases, there is a risk of blurring the boundaries between work and leisure time for employees. But when and to what extent do employees have to be available for their employer outside of regular working hours? The Federal Labour Court (judgment of 23 August 2023 – 5 AZR 349/22) had to deal with this question.

Circumstances

The employee of an ambulance service believed he was not obliged to take on shift work assigned to him outside the time limits laid down in a works agreement. This led to a legal dispute over the (re)crediting of deducted working hours to the employee’s working time account and the removal of a warning from the employee’s personnel file.

Key Statements of the Federal Labour Court

Neither the ArbZG nor the BUrlG or any other legal regulation grants an employee a claim to unavailability. Currently, there are only regulations on maximum working hours, rest periods, and the prohibition of Sunday and holiday work.

The Federal Labour Court overturned the lower court judgment of the Schleswig-Holstein Higher Labour Court, which had largely ruled in favor of the employee, and made the following key statements in its judgment:

• An obligation on the part of the employee to take note of minor organizational instructions may also exist in his free time. This applies at least with regard to the specification of the time and place of performance of the work, provided that the employee is aware of the obligation to take note of the work outside of work on the basis of company regulations. The Schleswig-Holstein Higher Labour Court had assessed this differently, reasoning that reading a message also constituted work performance as it served purely foreign interests and needs.
• In the opinion of the Federal Labour Court, the short-term acceptance of instructions – such as reading text messages, e-mails, or other work-related messages – is not to be regarded as working time in the sense of occupational health and safety law. Rather, it is an ancillary obligation in the employment relationship that does not significantly impair the employee’s free time.

Result

According to the judgment of the Federal Labour Court, it is clear that there is no absolute right to be unavailable. However, this must not be misunderstood to mean that an employee must be permanently available to the employer outside of working hours. Instead, an appropriate balance is to be struck between the interests of the employer and the employee, taking into account both the need for flexibility on the part of the employer and the protection of the employee’s health.

Practical Tip

It is advisable for employers to include the obligation to take note of minor organizational instructions (e.g., regarding the time and place of performance of the work) in the company’s regulations – e.g., in the employment contract or, if there is a works council, in a works agreement.

By MELCHERS, Germany, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact germany@transatlanticlaw.com

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