Employment Law2026-10-16

My employer is scrapping home working – do I have to go back into the office every day?

Your employer has ordered everyone back on site and home working is a thing of the past. Whether you simply have to accept that depends on what your home working rested on until now – and that is exactly what I work out with you.

From one day to the next, an email lands in your inbox: from a certain date everyone is required back on site, home working is being scrapped or cut to a single day a week. You find yourself wondering whether you simply have to put up with this – especially when you have built your life around working from home, with childcare, a long commute or a home you deliberately chose some distance from the office.

In brief

Whether you have to return to the office depends on what your home-working arrangement rested on until now. If it was purely at your employer’s discretion, or set out in a non-binding internal policy, they can in principle withdraw it. If, on the other hand, you have a contractual entitlement – in your employment contract, in a supplementary agreement or by established custom and practice – your employer needs a sound reason and must follow the route agreed in the contract, if necessary by changing the contract itself. Between those two poles lies the question of whether the instruction meets the test of “reasonable discretion” at all.

How I can help

I check what your existing home-working arrangement actually derives from – your contract, a supplementary agreement, a works agreement or simply established practice – and whether that gives rise to an enforceable entitlement.
I assess whether the specific instruction to return to the office still falls within “reasonable discretion” or is unlawful.
Where a works council exists, I bring its co-determination rights into play and check whether the instruction is even valid without the works council’s involvement.
I represent you towards your employer – from objecting to the instruction through to resolving the matter in court, if it comes to that.
Where there is a severe disability or a comparable limitation, I check whether you have a free-standing entitlement to adapted working conditions.

What did your home working rest on? That decides everything

The most common mistake is to treat home working as a single, uniform right. In law, what matters is the basis on which you have been allowed to work from home until now:

An individual arrangement in your employment contract or in an addendum. Where home working is expressly set out in the contract – say as a fixed weekday or as a proportion of your working time – that is a contractual obligation on your employer. They cannot scrap it by a unilateral instruction; they can only change it by agreement with you or enforce it through a dismissal for the purpose of changing terms (Änderungskündigung).
A supplementary agreement with a right of revocation. Many employers have dealt with home working in a separate agreement that contains a revocation clause. The precise wording then matters: if the clause is validly drafted (clear grounds, no surprising terms), the employer can revoke on that basis – but even then they must themselves act within reasonable discretion and may not proceed arbitrarily.
A works agreement. Where a works agreement governs home working, its terms are directly binding; a unilateral instruction by the employer that conflicts with it is invalid. A works agreement can, however, be time-limited or terminated – at which point the original power to issue instructions often revives.
Established custom and practice (betriebliche Übung). Where home working has been granted regularly and without reservation over a longer period, an entitlement may have developed even though nothing was ever put in writing. This has to be assessed case by case and turns on the duration, the regularity and whether the employer reserved the right to revoke.
Equal treatment. If the employer scraps home working for only part of the workforce, with no objective reason for the difference in treatment, that can give rise to a free-standing entitlement.
A purely internal policy or “until further notice” permission. This is the weakest case: an internal company rule that leaves home working to a manager’s discretion, or sets a cap on the number of days, generally does not create an entitlement of its own. Here the matter essentially comes back to the employer’s power to issue instructions.

The employer’s right to issue instructions – and its limits

Where the place of work is not fixed in the contract, the employer determines the place, time and content of the work under section 106 of the Industrial Code (Gewerbeordnung, GewO), within what is known as their reasonable discretion. That means they must weigh your legitimate interests against their operational reasons, may not decide arbitrarily and must in particular have regard to any existing disability.

In practice this means: the mere statement “we want more people on site again” will generally be enough as a justification where there is no closer contractual commitment – the employer does not have to prove a compelling operational reason, as they would for a dismissal. The instruction becomes invalid, however, where it rides roughshod over your interests in a disproportionate way, for instance through a sudden transfer to a far-off site, an unreasonably short period to adjust, or where it is plainly vexatious or breaches the principle of equal treatment. The place of work documented in your contract or under the Act on Proof of Essential Terms (Nachweisgesetz) also sets a limit on the right to issue instructions: if a fixed place of work is stated there, the employer cannot order you to another site without changing the contract.

Where a works council exists: use co-determination

If there is a works council in your business, scrapping home working is not a matter for management alone. Under section 87(1) nos. 1 and 2 of the Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), the works council has a right of co-determination on questions of order and conduct in the business, and on the start, end and distribution of daily working hours across the week. Fixed on-site days and a return to a uniform office rhythm typically fall within this area. If the employer has introduced the arrangement without the works council’s agreement, that can make the instruction open to challenge as a whole – regardless of how your individual entitlement stands. This is a free-standing lever that many employees overlook, because they look only at their own contract.

Special case: severe disability

If you have a severe disability or equivalent status, section 164(4) of the Social Code, Book IX (SGB IX) gives you a free-standing entitlement to have your workstation, work organisation and working time arranged to suit your disability, in so far as this is reasonable for the employer and does not involve disproportionate expense. Where home working was precisely such an adaptation in your case, a blanket recall to the office may breach that entitlement – and this has to be assessed independently of the general question of whether there was any contractual home-working entitlement at all.

A typical case from practice

A back-office employee had worked from home three days a week for over two years, originally agreed verbally with her team leader and never recorded in writing. The employer sent a round-robin email ordering that from the following month everyone was required on site daily. The review showed: there was no express contractual provision, but the home-working arrangement, practised consistently for over two years, pointed towards established custom and practice. There was also a works council, which had not been consulted on the new attendance rule. In the end, the instruction could be challenged through the works council’s co-determination right, without the more difficult question of custom and practice needing to be resolved in detail.

Common mistakes

Simply ignoring the instruction. Anyone who stays away without legal cover risks a formal warning or, on repetition, dismissal – even if the instruction turns out to have been invalid.
Relying on a verbal promise without documenting it. The longer and more regularly home working was practised, the more important it is to be able to prove it if a dispute arises – emails, calendar entries and recorded arrangements all help.
Overlooking the works council. Many employees check only their own contract and miss the fact that the instruction may already fail for want of co-determination.
Signing a new contract too hastily. If, as part of the recall, you are handed a new agreement ready for signature, you should have it checked before you sign – otherwise you may be giving up existing entitlements.

Frequently asked questions

Can my employer simply scrap home working by email?

It depends on the basis. If home working rested on a mere permission or an internal policy without an entitlement of its own, an instruction within the bounds of reasonable discretion under section 106 GewO is in principle enough. If, on the other hand, there was a contractual entitlement, the employer needs your agreement or must take the route provided for in the contract – for example a dismissal for the purpose of changing terms (Änderungskündigung).

What if I have been relying on home working because of childcare?

Private reasons such as childcare must be taken into account in the balancing of interests within reasonable discretion, but on their own they do not create an entitlement to home working. What remains decisive is whether you have a free-standing entitlement, whether contractual or arising from established custom and practice, against which these interests tell as an additional factor.

Do I have to comply with the instruction in the meantime while I have it checked legally?

As a rule, yes, provided the instruction is not obviously invalid – otherwise you risk a warning or dismissal while the legal position is still being clarified. At the same time you should lodge an objection and set the review in motion quickly, so that your position is not weakened by accepting the instruction without protest.

Does this apply even where there is no works council in the business?

Yes, the co-determination rights under section 87 BetrVG presuppose that a works council exists. Without one, it comes back to the individual assessment of your contract, any possible custom and practice, and the limits of reasonable discretion.

Can the employer instead transfer me to another, more distant site?

That too is subject to reasonable discretion and finds its limit in the place of work documented in the contract or in the written statement of terms. A transfer over a considerable distance that fundamentally changes your circumstances is more open to challenge than a mere return to on-site working at your existing location.

Your next step

If your employer wants to force the return to the office not by instruction but by changing your contract under threat of dismissal, read what to watch out for with such a dismissal for the purpose of changing terms and what time limit applies to your objection. In all other cases, the rule is: have me check the basis of your existing home-working arrangement and the specific instruction before you react – in an initial consultation in the field of employment law I work out whether and how you can push back, including in tandem with the works council.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-10-16.

This article was written by Christian Czirnich, a German Rechtsanwalt (lawyer) since 1994, Kirchseeon (district of Ebersberg). He advises employees, executives and small businesses in employment law, with clients from the district of Ebersberg, east Munich and the Rosenheim area, in English or German and by video on request.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

Tell me what your home office arrangement was based on – I will take a look.

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