Home office, mobile work, remote work – there are many terms for working outside the employer’s premises. When the Corona pandemic banished many employees to the home office, the term home office was commonly used – but only comparatively few employees actually work in a home office in the strict sense. The way the workplace is set up determines which legislation applies.
Definition of terms: home office, mobile working & Co.
In order to determine the legal differences, it is first necessary to define what is hidden behind the individual terms:
- Teleworking: teleworking refers to a permanently installed computer workstation that is set up in the employee’s private premises. This does not necessarily have to be the employee’s own home – the decisive factor is the fixed installation of a workstation outside the workplace. However, the decisive factor is: teleworking only exists when the employer and the employee have agreed on teleworking and its framework conditions in an employment contract and the workplace financed by the employer has been set up.
- Mobile working: In mobile working, the employee equipped with a notebook or tablet with mobile Internet connection can work from changing locations – including from home, but also on the train, in a café or in a hotel. The characteristic feature is that there does not have to be a fixed workstation.
- Home office: Most people use the term “home office” for working at home. This can be characterized as both telecommuting and mobile working, depending on whether or not a fixed workstation has been established. Most “corona home office workplaces” lacked the fixed setup and/or contractual agreement.
- Remote Work: This term describes the same work situation as mobile work.
- Homeworking: Although it is also carried out within one’s own four walls, homeworking refers to a different type of activity and, in particular, a different legal status. Home workers do not necessarily work at a computer, but also perform assembly work, for example. They are not bound by instructions from the employer with regard to the time and place of work performance. They often even work on a self-employed basis. In any case, the Home Work Act applies in deviation from normal labor law. Home work must be clearly distinguished from telework.
Home office vs. mobile working: the differences
Whether home office or mobile work, in both cases the employee works outside the company. But the legal nature of both scenarios brings about significant differences:
The same occupational health and safety requirements apply to the permanently established home office as to workplaces in the company. The employer must comply with the guidelines of the Workplace Ordinance, carry out a risk assessment for the home workplace and instruct the employee accordingly. He is responsible for ensuring that the workplace does not pose a health risk to the employee.
The Workplace Ordinance does not apply to mobile work, as there is no fixed workplace. Accordingly, the amount of work involved in occupational health and safety aspects is low. Nevertheless, some regulations must be complied with, the risk assessment and the Industrial Safety Regulation. However, there are often restrictions here. In order to fulfill his obligations, the employer should properly document the inspections and instructions.
#2 Costs for the establishment of the workplace
For both forms of work, the employer must bear the costs of setting up the workplace and operating it in accordance with Section 670 of the German Civil Code. For a telecommuting workplace, furniture in particular is required in addition to work equipment such as a PC and printer. If the employer does not provide the furnishings or work equipment, the employee is entitled to reimbursement of the expenses.
In the case of mobile work, the costs are significantly lower than in the case of teleworking, because here a notebook, a smartphone and a headset are generally sufficient. If there is an agreement to this effect, the employee can also bear the costs for the purchase.workstation.
#3 Working time regulations
With regard to the Working Hours Act, there are no differences between mobile work and home office – the regulations on maximum daily working hours and compliance with rest breaks and hours must be observed in full. The employer must ensure this. Especially with mobile work, it is extremely difficult to control working hours and break times. After all, even spontaneously checking e-mails during the train ride home interrupts the eleven-hour rest period between two workdays.
#4 Data protection
In the home office, the employer can and must set up the workplace in such a way that data can be transferred securely to the company network, for example via a VPN (Virtual Private Network). In addition, the employee must prevent access by third parties, for example through security mechanisms on the computer or by locking the office room.
Ensuring data privacy is much more challenging when working on the move. In a café or on the train, it’s easy for others to take a look at the notebook screen or eavesdrop on a business call. Special protection mechanisms need to be put in place here, such as a privacy screen for the notebook screen and the avoidance of phone calls in public spaces.
Home office or mobile work? Advantages and disadvantages in overview
Both models have their advantages and disadvantages and are therefore suitable for different initial situations:
a) Fixed home office
- good accessibility
- less distraction from outside, more concentration at work
- less frequent data protection violations
- easier compliance with occupational health and safety
- high requirements for occupational health and safety
- high costs for the facility
- higher running costs
b) Mobile working
- low requirements in the area of occupational health and safety
- simple implementation without large purchases
- efficient utilization of idle and travel time
- lower costs for the facility
- high flexibility
- major data protection risks
- Risk of violations
- Distraction of the employee by environment
- Susceptibility to technical faults or unstable mobile network
Work on the Move
Although the second draft bill for a Mobile Work Act (MAG) has already been introduced, employees do not yet have a right to mobile work. However, it is to be expected that remote work will increasingly become standard in the coming years and that many employers will offer the option at least as an additional benefit.
In any case, employer and employee should contractually stipulate the most important key data, such as:
- Home office model (mobile work or fixed workplace)
- Work equipment
- Assumption of costs for set-up and ongoing operation
- Data protection requirements
- Time limits for telecommuting (alternating telecommuting, if applicable)
- Revocation options
In this way, the home office is legally on a secure footing and can develop into a successful model.
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