Holidays and mobile working: "Most employees do not know that they could have time off"

Enlarge image

How flexible can I be in the Mobile Office?

Photo: GoodLifeStudio / E + / Getty Images

Holidays are a nasty part of federalism: While Christmas or Easter are national public holidays, for example, only certain federal states are allowed to put their feet up on days like All Saints' Day (1.11.) Or Holy Three Kings (6.1.), The rest of them have to work.

Catholic Bavaria, for example, treats itself to four additional public holidays with Epiphany, Corpus Christi, Assumption of Mary and the Augsburg Peace Festival, which are normal working days in northern Germany.

So why not escape from work in the age of mobile office and simply open the mobile office where it is a holiday - and then relax and free yourself?

If you believe voices from practice, more and more employees come up with this idea.

The Frankfurt lawyer Eva Wißler on loopholes in the employment contract - and the arguments of both sides.

manager magazin:

Eva Wißler

: Yes, you would.

At least if the employer has given you permission in advance to work on the move.

Which many employers are currently doing due to the pandemic.

If I use that to the max, that would mean up to five more days off for me, depending on where I'm going on days like today's Day of Repentance and Prayer or the Three Wise Men.

Wißler:

Well, it's not that simple, there are already a few questions attached: The employers' side argues that employees have a duty to ensure that they can do their job while working on the move.

But if I deliberately go to a place without internet access and am not operational, that is difficult.

But if the employer allows mobile working, they don't give a fixed place to work.

Wißler:

That is the point.

Then the cat bites its tail.

I don't want to speculate about anyone who is in doubt about the longer lever.

This is a total gray area, the courts have not yet made a decision.

In other words, whether I have to work on public holidays is not currently decided by my employer's place of business, but by my actual place of work on the day in question?

Wißler:

That is precisely the principle, exactly.

Of course, the employer can still give you a go and say: If you choose a place for mobile work that is on a public holiday and you don't work, then we won't compensate you for the day either.

He can also determine a fixed place of work or at least stipulate the locations at which mobile work is generally permitted, this is part of his right to issue instructions.

However, if the definition focuses on the employee's apartment, then it is no longer mobile working, but home office.

This also means that the occupational health and safety requirements for activities in the home office must be observed.

These can be quite complex.

But the employer has to pay for public holidays anyway.

Wißler:

He has to, yes.

The employer will argue, however, that holiday hopping abuses the freedom of mobile working.

If you work from your parents' place of residence for a longer period and there is an additional public holiday, it is certainly not abusive.

But if you consciously go to federal states to take all kinds of public holidays with you, things will look different.

What if it is a public holiday at the company's headquarters but not at my place of work?

Wißler:

Then they have to work.

So it is not important that my place of work is also my official place of residence?

Wißler:

No.

That would be the rule when working from home.

When working on the move, the most important thing is not to be tied to one place of residence.

Here it is essential that the workplace is suitable to be able to pursue the job.

It's all about the how, not the where.

Hamburg is explicitly listed as the place of work in my employment contract.

Does it matter?

Wißler:

That no longer

when the employer releases mobile working.

In doing so, he softens the place of work.

It would only play a role if you were supposed to do some research in the Hamburg area, for example.

Then you would have to be there.

The employer's interests must also be safeguarded when working on the move - that means, in case of doubt, to be ready for action on site.

Would you recommend “holiday tourism”?

Wißler:

It depends on how brave you are.

I would make it clear that there is a risk that the employer will cut the salary on that day and that it will not be conducive to the relationship with the employer either.

Does this happen more often in practice?

Wißler:

I myself had two such cases.

Most employees do not know anything about this gray area - and work in the same way as the public holidays at the actual place of work.

The whole thing also has a social component, you show consideration for your colleagues, the boss and the customer.

Gray areas in particular are often exploited by people who are already mentally on the move.

Nevertheless: We should regulate this legally or in the policies for mobile working, otherwise problems will arise in the long term.

What must be agreed in the employment contract so that “holiday tourism” is even considered?

Wißler:

Mobile working must be approved by the employer without restriction, that is the most important thing.

However, many companies are now increasingly setting their own rules for mobile working.

For the employers we represent, we have included a clause in the employment contract: It prohibits working in areas that are not the official place of work during regional or local holidays.

Would such a clause stand in court?

Wißler:

We have not yet set a precedent.

However, we are counting on their legal strength.

Wißler:

Not at all.

Where to work mobile is up to each and every one of them.

Does it make a difference if my employer officially sends me to another state to work?

Wißler:

Then the law on public holidays applies at the place of work.

If a public holiday falls in, it is off work.

This also applies to postings abroad.