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German Federal Labor Court States Employers Must Provide Employees With Work Equipment

On November 10, 2021, Germany’s Federal Labor Court (Bundesarbeitsgerichtruled (Case No. 5 AZR 334/21) that employers must provide employed bicycle couriers with all the equipment essential for the performance of their work, including bicycles and internet-enabled smartphones. Alternatively, an appropriate financial compensation for the use of a delivery person’s own bicycle and mobile phone may be agreed upon in the employment contract, the court ruled.

In the case at hand, the employer had granted its employees only a repair credit in the amount of 25 cents per working hour. This credit could only be used at a repair service selected by the employer.

The Federal Labor Court decided that the agreed use of the employee’s own bicycle and mobile phone, without appropriate financial compensation, was unreasonably disadvantageous to the employee. A corresponding agreement in the employment contract (which was a standard form template) was therefore invalid according to the law on general terms and conditions (§ 307 (2) no. 1 in conjunction with (1) sent. 1 German Civil Code). Such an agreement would have rendered the employer completely free from acquisition and operating costs, as well as usage risks (e.g., for wear and tear, loss, and damage). Moreover, under the corresponding agreement in the employment contract, the employee could not even freely spend the repair budget granted.

The legal principle applied means that an employer must provide all work equipment necessary for the performance of a job and also ensure that the equipment is in working order at the employer’s own expense (§ 611a (1) German Civil Code). If an employer wants to avoid providing the work equipment, both the employer and employee must contractually agree upon appropriate compensation for the use of private devices. The fact that an employee could demand reimbursement of expenses according to § 670 German Civil Code is not sufficient to nullify this principle.

This decision may also have an impact on companies that are not in the delivery business. Employees are increasingly using their own private devices to perform their work (so-called “bring your own device” practices). According to the German Federal Labor Court’s ruling, the use of a (delivery) employee’s own work equipment is still possible, but the employer must pay appropriate financial compensation for the necessary equipment and usage. If the employment contract does not contain appropriate compensation, the arrangement on the use of private devices may be invalid.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 344
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About this Author

Anja Becher Employment Attorney Ogletree, Deakins, Nash, Smoak & Stewart Berlin, Germany
Counsel

Anja Becher is counsel in Ogletree Deakins’ Berlin office. She advises national and international clients on all aspects of German individual and collective employment law as well as assists clients with ongoing daily business issues (i.e. drafting employment agreements, agreements for executive and managing directors and company agreements). Furthermore she is specialized in company pension law and matters regarding compliance under employment law. She litigates before all German courts.

Prior to joining Ogletree Deakins in February 2016, Anja Becher worked for six years as an...

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