An employee does not have to read any business SMS in their free time. This was decided by the Schleswig-Holstein State Labor Court (LAG) in a judgment that has now been published in September 2022. The case concerned short-term roster changes for an emergency paramedic. Previously, “Der Spiegel” reported on the judgment (Az.: 1 Sa 39 öD/22).
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The main question is whether the paramedic had to react to a short-notice change in the duty roster for the following day in his free time. In two such cases, he could not be reached by telephone or SMS, and in one case also by e-mail. As originally planned, he reported to his services. The employer assessed his employee’s behavior as an unexcused absence and first gave him a warning and then a warning. The emergency paramedic went before the labor court (ArbG) and was defeated. In the appeal, the LAG ruled in favor of the man.
Notice only at the start of service
According to the LAG, the employer had to reckon with the fact that the plaintiff only took note of the SMS sent to him when he started work. At that point in time, the plaintiff was obliged to go about his work and this also included reading the official messages he received from his employer in his free time.
The LAG ruled that the plaintiff had not behaved in breach of trust. The right not to be reached serves not only to protect the health of the employee, but also to protect the personality. “It is one of the most important personal rights that a person decides for himself who he/she wants to be available for during this time or not.”
DGB national board member Anja Piel praised the decision. Employers who expect work and accessibility from their employees in their free time are on the wrong track. “No employee has to read SMS or answer other inquiries in their free time. That is how you perform work and that is working time,” said Piel. Unlimited working hours and constant availability are unhealthy. “Employers have to organize work in such a way that employees’ free time is protected – this is technically possible without further ado.”
(axk)
