Coburg – Quickly answer an e-mail from the kitchen table, then for a video conference via Skype on the couch in the living room: Due to the corona pandemic, many employees are currently working from home – and are urgently dependent on a stable internet connection. But what if the network operator reports a fault and the Internet fails over a large area? Does the employee have to make up for the downtime or even take vacation – paid or unpaid -? Is he still entitled to wages?
Jan Hofer, specialist lawyer for labor law in Coburg, can reassure affected employees. “The fact that the Internet fails is part of the operational risk that is fundamentally borne by the employer,” he explains, adding: “The employee has offered his job. He cannot help the Internet fail as long as he has not intentionally caused the failure. I see that very clearly. ” Therefore it is not required under labor law that the time in which it is not possible to work due to the failure is made up.
Neither does anything else apply if a part-time employee is affected, who usually does their work in the morning – and theoretically could make up for what was missed in the afternoon. “If the employment contract stipulates that the employee must perform his work between 8 a.m. and 12 noon, then the working hours cannot be postponed, provided that the loss of work – as in the case of an internet problem – is not due to the fault of the employee “clarifies the lawyer. A wage entitlement therefore continues to exist.
“It is not a problem that the employee caused,” explains Jan Hofer, referring to an example where a worker is involved in a traffic accident by a third party and is then temporarily unable to work. “If the employee is culpably bumped together by a third party, then the third party is liable for the loss of wages,” said the lawyer. In the event of an Internet failure, one could therefore discuss whether the employer is entitled to claim damages against the network operator. “Purely theoretically”, emphasizes Jan Hofer and adds: “Whether the claim is then enforceable, provable and what the fault of the network operator looks like, that is then difficult.”
In order to bridge the breakdown of the Internet, however, the employee could in principle be required to return to the office to carry out his work. “Unless the right to work in the home office is stipulated in the employment contract. Otherwise the employer has a right of direction within which he can determine the place of work. The limit of this right of direction is of course the reasonableness for the employee,” explains Jan Hofer, who points out that, due to the fact that it is up to date, there have not yet been any known court decisions on this question. “It would be conceivable that the employee belongs to a risk group or lives in a household with older people whom he does not want to endanger by returning to the office.” Ultimately, according to the lawyer, such cases can only be dealt with on a case-by-case basis.
At HUK Coburg, according to Karin Benning from the corporate communications department, there were only problems with internet failures in the home office during the first lockdown in March. “We had almost the entire workforce sent to the home office within a very short time,” she recalls. “At that time there were also some initial difficulties.” The fact that employees were confronted with a lengthy Internet failure only happened in very few individual cases. “We solved these cases quickly and pragmatically together with the colleagues concerned”, says Karin Benning. More than 70 percent of the insurance company’s employees are currently working from home. Private end devices are primarily used, but: “In the event of technical emergencies, we can help out with rental hardware.”
For the employees of the Coburg waste disposal and construction company CEB and the stdtischen berlandwerke SC, however, mostly technical equipment was provided by the employer. “Private devices are only used in very few cases,” says Antje Leipold, who is responsible for corporate communications.
At present, 150 SC and CEB employees have the option of mobile work. Fortunately, this runs smoothly: “We are not yet aware of any cases in which employees in the home office could not continue working due to a failure of the Internet connection.”
The Haba family of companies based in Bad Rodach draws a similarly positive balance. “We haven’t had this case before,” confirms Katharina Krappmann, Head of Corporate Communication. “In fact, we are currently handling the topic of home office very pragmatically, depending on the current situation or the current requirements of the employees in order to be able to combine work and family and to protect each other as best as possible.” In order to achieve this, a so-called honeycomb structure currently applies in the company family. “That means that we have divided up two teams that work in the office and in the home office in alternation every week,” says the family company. The advantage here is that the majority of employees already have a laptop. “We react pragmatically where there is a lack of work equipment. For example, it is always possible for employees to take screens and the like home with them.”