The Vienna Higher Regional Court (OLG Wien) addressed the reimbursement of expenses for working in a home office in a court decision (OLG Wien 26.01.2023, 8 Ra 47/22y). The case occurred at the beginning of the COVID-19 crisis, prior to the implementation of the "home office package" into Austrian law. The legal basis for expense reimbursement is therefore § 1014 of the Austrian Civil Code (ABGB).
Like many other companies, the defendant employer responded to the initial lockdown by requiring employees to work from home until a return to the office premises became possible. Subsequently, the office premises were permanently abandoned, and employees were informed that they would be permanently working from home. A home office agreement was concluded with those employees who agreed, stipulating an expense reimbursement of EUR 250 gross. This lump sum was intended to cover all additional expenses incurred by employees, including increased energy costs and rent.
The plaintiff did not sign the home office agreement. In her lawsuit, the plaintiff sought a reimbursement of expenses amounting to EUR 250 net and argued that this claim was reasonable, considering the office rents in her residential area. The court of first instance partially granted the claim and determined the amount of the claim based on its own conviction according to § 273 of the Austrian Code of Civil Procedure (ZPO). Ultimately, the court of first instance deemed a lump sum expense reimbursement of EUR 135 net (approximately EUR 250 gross) per month to be reasonable.
The plaintiff appealed to the Vienna Higher Regional Court (OLG Wien). In particular, she argued that the compensable benefit of the employer's cost savings should be taken into account. The OLG Wien disagreed with the claim that the amount of expense reimbursement was too low. Based on the plaintiff's cost breakdown, the court explained that the first step is to calculate the proportion of costs (electricity, gas, internet, rent including operating costs) that is attributable to the space used as a workplace. In this specific case, it was the plaintiff's living room, which measures approximately 36m². After calculating the respective shares per month, the costs are prorated according to the agreed working hours. As a result, the OLG Wien determined that an expense reimbursement of EUR 0.90 per working hour was appropriate in this specific case.
Since there is no existing case law from the Austrian Supreme Court (OGH) regarding this specific question, the Vienna Higher Regional Court (OLG Wien) allowed for an ordinary appeal. It remains to be seen whether an appeal will be filed and how the OGH will decide on the matter.
In practice, it is important to note that any lump sum expense reimbursement should be justified and reasonable, as otherwise, a claim for payment of a reasonable expense reimbursement may arise.
The employment law team at KWR is available to assist you with any questions regarding expense reimbursement in the home office.