New work: Desk sharing – essential rules for employers –

Since the rise of home office and mobile working as a result of the pandemic, many companies have begun reducing their workspaces and office areas to reduce rental and energy costs. When employees no longer work in the office every day, the workstations and rooms can be shared by different staff. Desk sharing also contributes to a green office and sustainable business by saving electricity and other sources of energy. Nevertheless, more than a few employees, in particular managers, view desk sharing with a critical eye because this concept is often associated with the loss of a personal office and individual workspace. Some staff also fear that a sort of “musical chairs” will occur and they will be unable to find an unoccupied workstation when they go to the office. Given that the clean desk policy requires that desks be cleared at the end of each working day, many employees also miss the freedom to create their own unique workspace.

1. Seek dialog instead of top-down decisions
   The Rhineland-Palatinate Regional Labor Court has ruled that employers may assign their employees to a different workplace on a daily basis as per their right to issue instructions pursuant to Section 106 of the Trade, Commerce and Industry Regulation Act provided that they observe the limits of their reasonable discretion. However, a decision by the Berlin-Brandenburg Regional Labor Court states that the employer’s right to issue instructions does not apply to unilaterally ordering work from home. Desk sharing assumes that not all employees can work in the office at the times they prefer. As a consequence, the model only functions if the numbers of employees working from home or on the move and the participants in the desk sharing concept are coordinated.
   Establishing a dialog with employees and, if necessary, the works council is recommended to address any reservations regarding desk sharing before implementing the concept. This enables employers to communicate the opportunities and increase the level of acceptance. The need for office, meeting and conference rooms as well as other interaction areas can also be determined in advance.
2. Occupational health and safety
   Section 3a(1)(1) of the Workplace Ordinance (ArbStättV) also applies to desk sharing: Health risks for employees must be prevented. Accordingly, employers must first carry out a risk assessment in accordance with Section 3 of the Workplace Ordinance (ArbStättV): They need to determine the ergonomic requirements and HR must ensure that workplace design addresses the needs of a diverse range of employees, for example.
   If employees share a workplace, multiple people may use work equipment such as the PC, mouse, keyboard and headset. Section 4(2) of the Workplace Ordinance (ArbStättV) stipulates that employers must, therefore, ensure that workplaces are cleaned on a regular basis and fulfill hygiene requirements.
3. Data protection
   Companies also need to safeguard data protection, particularly when it comes to desk sharing. After finishing work, company documents have to be cleared away from the desk if the desk will be used by other employees the following day. Where necessary, secure filing cabinets and containers need to be provided to store correspondence and materials.
4. The works council is entitled to participate
   At companies with a works council, the participation and co-determination rights differ depending on how the desk sharing concept is designed. In any case, the employer must inform the works council about the introduction of the concept in accordance with Section 90 of the Works Constitution Act (BetrVG) and discuss the model. This needs to take place ahead of time to enable HR to take into account the works council’s suggestions and concerns in its planning.
   However, neither the introduction of a desk sharing concept nor a reduction in office space gives rise to an enforceable right of co-determination, as ruled by the Federal Labor Court stated in its decision dated November 17, 2021, Ref. 7 ABR 18/20: Desk sharing does not significantly change the work tasks of the individual employees to the extent that these can be regarded as a “different” task. As such, this does not represent a transfer subject to co-determination pursuant to Section 99(1)(1) and Section 95(3) of the Works Constitution Act (BetrVG). Although desk sharing involves a spatial change, the overall activities of the individual employees remain the same. Nor does a change in operations in accordance with Section 111 of the Works Constitution Act (BetrVG) occur and, therefore, the company is also not required to negotiate a reconciliation of interests and to conclude a social plan. The fact that employees use a different workspace in the office every day does not constitute a substantial disadvantage.

However, accompanying measures associated with desk sharing may result in co-determination obligations on the part of the works council: Given that the desk sharing concept requires the introduction of and regulations governing mobile work, especially when working from home, the works council has a right of co-determination pursuant to Section 87(1)(14) of the Works Constitution Act (BetrVG). We have already addressed this topic.
For example, if the introduction of a clean desk policy requires regulations on the storage and handling of private objects in the workplace, this may represent a question of company order. Therefore, the works council is entitled to a right of co-determination in accordance with Section 87(1)(1) of the Works Constitution Act (BetrVG).
Companies frequently use a booking tool to distribute workstations as a means of optimizing desk sharing. If and to the extent that this tool is used to monitor the behavior and performance of employees, the works council is also entitled to a right of co-determination pursuant to Section 87(1)(6) of the Works Constitution Act (BetrVG).