Home office: employer's right of access - access to the home

The transition from office to home office requires clear and understandable rules about how the employee sets up and works from home. Written agreements with the employee specifically for the home office are ideal for this purpose. Many of these agreements also include a right of access for the employer, particularly to monitor data protection and IT security. But is this permissible? How should the employer's right of access be set out in the contract? And what are the peculiarities of the coronavirus crisis? All this is explained in this article!

Why does the employer need access to the home?

Under the General Data Protection Regulation (GDPR), the employer is responsible for the lawful processing of personal data in the organisation. They are also responsible for occupational health and safety (e.g. risk assessments). It is easier for them to meet these obligations in the office because they can directly influence the technology used, the technical and organisational measures and the way employees work. In the case of homeworkers, the employer relies on the homeworker to comply with and implement the agreed arrangements - but remains just as responsible as if the homeworker were working in the office. The employer must therefore be able to monitor the implementation of the rules and agreements.

Why is a special agreement required for the checks?

Checks in the employee's home are not easily possible. The employee has the domestic authority over his or her home and can decide who enters it. This right derives from the inviolability of the home under Article 13 of the Basic Law (GG) and is therefore constitutionally guaranteed. The right of home ownership is protected under civil and criminal law in the German Civil Code and the German Criminal Code. In particular, it is a criminal offence to enter a home without consent (Section 123(1) StGB). For this reason, there is no general right of access. Instead, the employer must regulate access to the employee's home by contract and requires the consent of all occupants to actually enter.

Can the employee refuse access despite an agreement?

As the actual entry requires the consent of all adult residents, even with the agreement in place, checks can still be refused in individual cases. This follows from the significant position of Art. 13 GG. However, the employer reserves the right to determine the consequences under labour law in the event of refusal despite a prior contractual agreement. For example, the employer could agree to instruct the employee to return to the office if access is refused.

For what purposes is the employer allowed to carry out checks?

The employer may only carry out checks for the purposes previously agreed in the contract. Under the GDPR, the employer may (and should) carry out checks to ensure compliance with data protection and IT security. The employer must also ensure that health and safety rules are implemented. However, the checks must be limited to what is strictly necessary and may only be carried out to a reasonable extent.

When can the employer carry out checks?

In principle, the employer may only carry out checks at the home office at times when the employee is working from home. The employer must not visit the employee at an inappropriate time and must give reasonable notice of the visit. This notice period must also be set out in the contractual agreement. In certain circumstances, however, the agreement may also specify the exceptional circumstances in which a shorter notice period may be considered.

Besides the employer, who else needs access to the home?

In addition to the employer itself, access by the company data protection officer and the data protection supervisory authority should also be regulated in the contractual agreement. This is because the data protection supervisory authority has the right to monitor compliance with data protection pursuant to Art. 58 para. 1 lit. f GDPR and Section 40 para. 5 BDSG. And this monitoring must also be possible in the home office. In addition, the company's health and safety representative or members of the works council (see Section 80 (1) No. 1 BetrVG) may also be considered authorised persons. All possible persons should be clearly named in the agreement.

How do you have to take into account flatmates?

As all adult housemates must give their consent if the employer wishes to enter the home, contractual consent should also be obtained from them in advance. It is advisable to provide appropriate forms for the employee to give to the housemates to read and sign. The employer should retain the signed forms. However, even with these contractual consents, residents may refuse actual access in individual cases.

Do employees choose to work from home?

In terms of interventions, the legal literature focuses on the fact that employees voluntarily choose to work from home and then accept access to the home for inspections or can stay in the office instead. This is because there is currently no right to work from home in Germany. However, in the current coronavirus crisis, this voluntariness may be lacking if employers have no choice but to send their employees to work from home, effectively forcing them to accept the controls. If the only option for the employee is to go to the home office, it is therefore ultimately unclear whether the agreement to controls is permissible.

Are there less severe measures?

Instead of accessing the home, the employer should consider less intrusive means. If certain aspects of data protection and IT security can be checked remotely with the same result, these options should be preferred. This is because it would not be justifiable for the employer to enter the home if it could fulfil its duty of inspection by other means, possibly with less effort.

What must the employer not inspect?

The inspection activity may only relate to the implementation of the relevant data protection, IT security and health and safety regulations. However, in the home office, as in the office, it is generally prohibited to monitor employees in any way. If remote diagnostic tools are used, their function may only relate to legal monitoring obligations. Permanent monitoring of the employee's work in the home office is generally not permitted.

Conclusion

The employer therefore has many aspects to consider when granting a right of access to the home office. It is therefore important to include all relevant points in the agreement with the employee and to make it as specific as possible. However, the employer should always be aware of the high status of the inviolability of the home and really limit the access rights arising from the agreement to what is absolutely necessary - or at best use milder alternatives.

We are here to help and will work with you to develop a homeworking agreement that specifically addresses the employer's right of access. Contact us and put your trust in our data protection expertise!