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Labour law

Salary reclaim due to non-performance of work in the home office

In its ruling of September 28, 2023 (case reference 5 Sa 15/23), the Mecklenburg-Vorpommern Regional Labour Court made important decisions regarding the reclaiming of salary due to non-performance of work in the home office and the associated burden of presentation and proof.

Key points of the judgment:

  • Employee’s entitlement to remuneration: According to the court, the employee’s entitlement to remuneration lapses in full or in part if they do not fulfill their obligation to work or do not fulfill it in full. Exceptions apply if the remuneration must continue to be paid for other legal reasons, such as continued payment of remuneration in the event of illness.
  • Burden of presentation and proof: Normally, the employer bears the burden of proof that and to what extent the employee has not fulfilled their work obligations. The employer must therefore prove that the employee did not work or did not work sufficiently during home office hours. Following a corresponding submission by the employer, the employee must provide a substantiated response.
  • Specific case: In this case, the employer was unable to prove that the employee did not perform any work or performed insufficient work during her home office hours. The email correspondence showed that the employee had carried out certain activities.
  • Claim for repayment: The court ruled that the employer was not entitled to reclaim the salary as the employer was unable to prove that the employee did not perform her work from home. The court emphasized that an employee fulfils their obligation to perform if they work to the full extent of their personal capacity.
  • Claim for damages: The employer had no claim for damages under Section 280 (1) sentence 1 BGB, as no breach of duty by the employee was proven and no damage could be proven.

From an overall perspective, it can be seen that this ruling emphasizes the importance of a precise explanation and presentation of evidence by the employer in the event of salary reclaims due to allegedly not performed work – especially in the home office. The employee then has the opportunity to substantiate these allegations.

German Lawyer at Law Firm Ferner Alsdorf
I am a specialist lawyer for criminal law + specialist lawyer for IT law and dedicate myself professionally entirely to criminal defence and IT law, especially software law. Before becoming a lawyer, I was a software developer. I am an author in a renowned commentary on the German Code of Criminal Procedure (StPO) as well as in professional journals.

Our law firm specialises in criminal defence, white-collar crime and IT law / technology law. Note our activity in digital evidence in IT security and software law.
German Lawyer Jens Ferner (Criminal Defense & IT-Law)