Home office: reclaiming salary if work is not performed

The employer can reclaim salary payments if work is not performed in the home office. However, he bears the burden of presentation and proof!

The coronavirus pandemic has made it possible for many companies to work from home. Even for many employers, working from home has become indispensable. In some cases, this is even necessary due to a lack of space at the company headquarters. As a result, working from home has become standard practice for many companies.

Working from home is standard

However, negative effects are also well known. Be it the team spirit, which is diminished by the impersonal contact, or reduced effectiveness, as there is more distraction in the home office.

But what can an employer do if an employee does not actually perform their work from home? The Mecklenburg-Vorpommern Regional Labor Court recently ruled on this relevant question (LAG Mecklenburg-Vorpommern, judgment of 28.09.2023 – 5 Sa 15/23). In addition to compensation for vacation, the parties disputed in particular the repayment of remuneration for working hours in the home office. The latter is the focus here.

Employer demands repayment of wages because there is no proof of employment

The defendant operates a day care facility and an assisted living facility. The plaintiff worked for the defendant as a care manager and senior care worker. She was permitted to work from her home office. The plaintiff also made use of this option. In January 2022, for example, she worked 116:15 hours from home out of a total of 166:15 hours. Out of a total of 167:45 hours, 60:15 hours were spent working from home in February. The time recording for the month of March showed 16:30 hours in the home office out of a total of 188:45 hours.

The plaintiff’s tasks included in particular the revision of the quality manual and other documents required for care management. The employment relationship was finally terminated by the employer during the probationary period.

The employer then demanded repayment of gross wages from the claimant for 300.75 working hours in the home office totaling EUR 7,112.74 on the grounds that the work was not performed in the home office, as there was no objective proof of work. However, according to the former employee, she had documented her work performance in various emails.

LAG Mecklenburg-Western Pomerania: Employee was able to prove home office activities

The LAG ruled in favor of the former employee on the issue of home office remuneration. Accordingly, the salary payments for the months of December 2021 to March 2022 are based in full on a legal basis, namely the remuneration claim arising from the employment contract pursuant to Section 611a para. 2 BGB. This also applies to the working hours in the home office. The employer is therefore not entitled to a claim for repayment in the amount claimed.

The employer was unable to meet its burden of presentation and proof. She was unable to demonstrate the extent to which the plaintiff had not performed the work in the home office. On the contrary, the employee was able to present various documents from which it could be inferred that she had performed work. It did not matter whether the work was completed in the desired time or to the desired extent. According to established case law, an employee is deemed to have fulfilled his or her performance obligation if he or she works to the full extent of his or her personal capacity. The fact that the plaintiff had not completed individual tasks in full did not change this principle.

Trust necessary: Employer can hardly control employees and activities in the home office

The key finding of the ruling is that the principles of employment law also apply in full in the home office.

In principle, it is up to the employee to provide and prove the conditions of their claim to remuneration. However, according to established case law, the employer bears the burden of presentation and proof in the event of doubts regarding the fulfillment of the obligation to work at the company. The LAG applies these standards identically to working from home.

However, one problem remains. When working from home, the employer does not have the same opportunities to monitor employees and their work performance at the workplace. They must rely entirely on the honesty of the employee’s documentation. This increases the employer’s burden of proof enormously. The risk of working time fraud is also high.

However, this is not the case if employees perform supposedly quantitatively inferior work, but at the same time work performance is documented. In this case, the employer must then proceed with a warning about the behavior to justify a corresponding dismissal for personal or behavioral reasons. However, there is no unilateral reduction or reclaiming of pay.

Employers should issue clear instructions and keep call-backs open at the office workplace

In principle, it is relevant to give employees clear instructions on the nature and scope of their work. This is covered by the employer’s right to issue instructions. This allows targets to be set, the achievement of which can then be closely monitored.

Failure to comply with this can result in a warning and, in serious cases, dismissal for personal or behavioral reasons.

If an employee does not comply with the set work instructions, in the event of legal proceedings the employee must substantiate why they have nevertheless worked sufficiently. In this way, the employer can avoid the burden of presentation and proof.

If no work is actually performed, the employer can withhold remuneration or reclaim remuneration already paid in accordance with the principle of “no work, no pay”.

It is also relevant to include a clear provision on the possible termination of the home office contract or the possible recall to the company workplace in employment contracts, supplements to these or in works agreements. However, this should not be done without cause, but should be well justified.

In addition, it may also be possible to monitor employees working from home. This can be done with the help of IT, for example. However, this should be done with an extremely critical eye on the rights of the employee, especially in the area of data protection law. In case of doubt, such monitoring is only permissible if there are grounds for suspicion, e.g. that the employee is acting in breach of contract.

Contact person

Free newsletter

Matching contributions

Cannabis use in the workplace

Cannabis use has been legal with restrictions since April 1, 2024.
What consequences and problems does this have for employers?

Search

Request