Germany: Trip to Paris Fashion Week - employees' free time and the employer's right to issue instructions

Professional athletes in team sports are — in spite of high salaries and special positions - generally employees. In this respect, the principles of labour law also apply.

Starting point: Employer's right to instruct?

Pursuant to § 106 of the Trade, Commerce and Industry Code (GewO), the employer may determine the content, place and time of work performance at its reasonable discretion, unless these working conditions are stipulated in the employment contract, in a works agreement, in an applicable collective agreement or in statutory provisions. Consequently, the statutory right to issue instructions only relates to the manner of the employee's work in the employer's enterprise. For the purpose of effective enforcement, the Federal Labour Court (Bundesarbeitsgericht, BAG) also extends the right to issue instructions to, amongst others, so-called performance-securing secondary or behavioural duties. Although these duties are not directly concerned with the actual activity, they are closely related to it. In order to ensure proper operation, the employer's right to instruct must also refer to these duties. The employer's right to issue instructions is therefore limited if and to the extent that there is no connection whatsoever with the employer's business. The employer therefore has no right to determine how the employee should conduct his or her private life.

Nevertheless, there are areas that can neither be completely allocated to the employer's business nor to the employee's private life. Whether and to what extent the employer can intervene in these areas with effect on the employee's private life is determined by the employee's position in the company and by operational necessities. In addition, it is possible to "extend" the right to issue instructions through contractual agreements. However, the effectiveness of such an extended right to issue instructions is always subject to a more extensive appropriateness test ("Inhaltskontrolle", §§ 307 et seq. BGB). For example, in the employment contracts of professional athletes one will often find the prohibition or restriction of the practice of dangerous hobbies/sports.

Case study: Employee's availability outside working hours - LAG Schleswig-Holstein Judgement of 27.09.2022

Verdict 1 Sa 39 öD/22

Last year, the Regional Labour Court (LAG) of Schleswig-Holstein dealt with the question of the extent to which the employer is entitled to issue instructions to the employee on the start of his working hours during the employee's free time. In this case, the employer wanted to use text messages and e-mails to instruct the employee to start work earlier than initially agreed (change of duty schedule). The employee did not respond to this request. Instead, the employee reported for work only at the originally agreed time. The employer then deducted the corresponding time from the employee's working time account and issued a written warning to the employee. The employee objected to this.

The Regional Labour Court (LAG) of Schleswig-Holstein ruled that an employee is not obliged to inform themselves in their free time whether their duty schedule has been changed. He was also not obliged to accept a message from the employer — for example, by telephone — or to read a text message. If he does not take note of information about a change in the duty roster, he only receives it when he starts work. Despite the fact that in this case the employer's interests are also affected, the employee's interest in undisturbed free time prevailed — taking into account the employee's position in the company and the operational necessities.

The LAG decision is not yet final and is pending before the BAG.

Special features of professional sport

The situation may be different — as already indicated — with regard to an employment contract in the field of professional sport. Here, taking into account the particularities of professional sport and the special requirements for top athletes, further restrictions on private life (e.g. prohibition or restriction of the exercise of dangerous hobbies/sports) may be considered permissible. Such further restrictions can be justified by considerations such as the shorter contract duration of professional athletes, the stronger effects of longer absences and the crucial importance of the constant ability to perform of the employed athletes.

Nevertheless, there are limits. Visits to Paris Fashion Week during free time are legitimate. This is also supported by the fact that Gnabry did not receive any employer sanction, but only had to appear for a "report". Irrespective of this, the professional athlete must accept any sporting decisions made by his coach.

Ultimately, it is always a question of the specific individual case up to which point an interference affecting the private life remains permissible; unless the facts in question have no relation at all to the employer's business.