The Supreme Court has now dealt with the issue of reimbursement of costs incurred for working from home for the first time since legislation on work from home came into force. In its ruling 9 ObA 31/23h, the Supreme Court looked into expenses claimed by an employee who worked from home during the COVID-19 crisis.
1. Background and facts
During the first lockdown, the employee initially worked from home temporarily before work from home became a permanent solution starting in April 2020. An office workplace was no longer available to the employee from this point onwards. The employee refused to conclude a “home office agreement”, which would have provided for a monthly expense allowance in a gross amount of EUR 250. The employer provided a laptop, a company mobile phone and an office chair. No reimbursement was provided for other costs incurred. Subsequently, the employee requested reimbursement of expenses in the amount of EUR 250 net per month (KWR already reported on this in What does the employer have to pay for work from home? | KWR).
2. Reimbursement of expenses for work from home
The two lower-instance courts awarded the employee a monthly expense allowance in a net amount of EUR 135. The employee subsequently appealed to the Supreme Court, which ruled as follows:
Employers are generally obliged to provide the equipment necessary for work. In the event that employees provide for their work equipment themselves, they are entitled to reimbursement of expenses pursuant to section 1014 of the Austrian Civil Code (ABGB). According to the Supreme Court and the lower-instance courts, the entitlement to the reimbursement of expenses incurred for work from home not only includes additional costs arising directly because work is performed from home, but also proportionate expenses for electricity, heating and rent.
Courts are free to determine the appropriateness of a claim for the reimbursement of expenses pursuant to section 273 of the Austrian Code of Civil Procedure (ZPO). It is a matter to be assessed on the basis of specific circumstances in individual cases. However, the employee’s appeal did not state any arguments as to why the Higher Regional Court of Vienna would have exceeded the limits of such discretion. The Supreme Court thus confirmed the legal view of the Higher Regional Court of Vienna that the reimbursement of expenses must in any case include proportionate costs (electricity, gas, Internet, rent and operating costs) in order to be appropriate.
The Supreme Court also ruled that the entitlement to the reimbursement of expenses pursuant to section 1014 ABGB did not constitute remuneration. Accordingly, this entitlement is generally not relevant in the event of continued payment of remuneration during sick leave. Collective agreements may diverge from this in individual cases; in her appeal, the employee did however not refer to this. The Supreme Court also suggested that an entitlement to reimbursement could be due if the workplace in the home could not be used privately in the event of illness, e.g. because work documents or work equipment were located there. However, the Supreme Court did not address this issue further as there were no related pleadings by the employee.
3. Practical significance of the ruling
The ruling did not set a minimum or maximum amount for the reimbursement of expenses to employees working from home. However, it established a number of parameters which can be used as a yardstick for the appropriateness of reimbursements. Nevertheless, it should not be forgotten that these parameters may be assessed differently in individual cases.
Against this background, we recommend checking existing home office agreements for compliance with Supreme Court case law and adapting them if necessary.
The KWR Employment Law Team will be happy to assist you with any questions you may have.