Legality of company mandating employees to work late hours

Question

The company I am employed at has a system where most (currently ~8) full-time employees are instructed to take turns staying late (previously 18:30, now down to 18:00) to make a pass around the building, make sure windows are closed, things are turned off, doors are locked etc. This is called "locking duty" ("Schließdienst").

According to the CEO, the aim is to 1) make sure everything is closed and locked overnight and 2) make sure we are available for international customers until at least 18:00 (not that most of us could reasonably offer support to those customers)

This is mandated instead of asked, with the days assigned by a secretary and employees having to find a replacement if they cannot do it that day. Everyone on this rotation is annoyed at this messing with their daily planning, but nobody has openly protested against it yet, mostly because this has never been discussed openly in the last 10 years at least.

In theory, whoever has to do it can start late that day (which is frowned upon) or can leave early some other day (also frowned upon). There is no additional compensation for staying late.

All employees have flexible working hours ("Gleitzeit"), with a core working from 9-15 in their contract.

When I joined full-time, I was simply assigned to certain days, without ever getting asked if I was okay with it, and refused by citing that I was granted full flexibility with Home office and working hours in my hiring interview. This was successful for the last ~4 years, but CEOs have refused to put the home office flexibility into any of our contracts and have been going back on the flexibility more and more in recent times, so I fear I might be forced back into presence regularly, which would get me back on the "roster" implicitly.

So, my questions are:

• What kind of basis does my employer have to assign me into this once-a-week "locking duty", when my contract states I have flexible working hours?
• Is this common practice in Germany?
• How do I best push back against this implicit inclusion in the rotation should it happen?
• Does it make sense to propose alternatives (dedicated late hour support staff, technical checks that things are properly closed etc.) as an alternative to the late duty or is this a "career limiting move", as it essentially criticizes the status quo?

Additional details:

• The company is a small sized (~30 employees) company in Germany, with almost all employees working from Germany
• Everyone in the company has a clause regarding flexible working hours in their contract, and no clause regarding any late shifts
• When negotiating my contract, I got the verbal promise to have full flexibility regarding working hours and home office, as long as it is cleared with my supervisor (who agrees with my current working schedule of being present around once a week, whenever needed for meetings), but refused to put it into the contract since that would "make colleagues jealous, who are not fit for HO themselves"
• The current pushback against HO and flexible working hours is due to some (known) colleagues abusing the flexibility and effectively not working. But official reason given was that we need to "improve communication by seeing each other more often", without any examples of current communication problems
• There is no HR or legal department in this small company, so the CEO operate mostly on gut feeling of what is appropriate and allowed
• If that matters, I do not mean to say that 18:00 is some insanely late hour, but it does interfere with afternoon activities employees would otherwise attend to, in my case it is sports and spending time with friends.
• I regularly work late, whenever there was a crunch for a deadline I have worked as long as it took. But on regular days, I just want to be able to do things in the afternoon, which seemed a fair tradeoff until now

Answer 1

"Gleitzeit", while common, is not a legal term. That means it is not defined in any laws, but rather in your personal contract or union contract. So we don't really know what the nitty gritty details of it are in your company.

It is rather normal to have some employees start early and some work late to cover all times of the day in case a live conversation with customers is needed.

It is rather normal for smaller companies, that there is a number of trusted employees that can lock down the building and they are the last to go out each day.

Unless it is "unzumutbare Härte", your employer can ask you to work late, the same way they can ask you to work overtime. The task seems both reasonable and neccessary for the business.

The only thing that would actually be illegal would be to not pay you for the hours worked. So if leaving early or coming in later (still inside your Kernarbeitszeit) is frowned upon, you should ask if you get paid for the extra hours. Because you have to be compensated somehow. Either by getting your time back, or by getting paid overtime.

Unless you have a really good reason, like being a single parent and having to pick up your kid every day at the same time, I don't think you really get out of this.

What you can do to mitigate this is to ask for reasonable rotation schedules. It might be easier if you know you have to work late for example every Tuesday. It sucks, but it is probably better than having to work late on random days you don't know the week before. At least you can plan with it.

You could also ask to look for colleagues who like working late next time peope are hired. We never had this problem in the companies I worked, because we had people (I was one of them) who genuinely liked coming as late as the Kernarbeitszeit would allow and staying late.

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As far as remote work is concerned, if I understood you right, that was an informal agreement, not written down in any contract, right? Normally, at some point in time you had an informal privilige so long and in obvious acceptance of your employer that is is seen as part of the contract (Gewohnheitsrecht). I think the normal timeframe is two years. However, since remote work was mandated during COVID, I think you would have hard time to actually see this through in court. The employer did not really "accept" is as much as "was forced to do it". And quite frankly, if a court is involved, you are not going to work there very long anyway.

So for remote work you have to have a conversation with your boss and explain to them that remote work is a real perk worth real time and money to you. Removing it means your package deal with them is getting worse and alternatives get more attractive. But in the end, if you have nothing in written form and they say no, it is up to you to look for greener pastures.

Answer 2

This sounds similar to a flexible working hours concept I met under the name of (core) functional time: as long as the team/group/unit makes sure during the defined functional hours customers can always reach someone sufficiently knowledgeable, the individual team/group/unit members are allowed full flexibility in their working hours (maybe not even having core hours where each member has to be working).

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Does it make sense to propose alternatives (dedicated late hour support staff, technical checks that things are properly closed etc) as an alternative to the late duty or is this a "career limiting move", as it essentially criticizes the status quo?

Constructive critique should never be a career-limiting move, and proposals that strive to improve things should always be welcome - and usually are.
If you suspect it would be career-limiting there, it's time to move on. But what you write does not sound like it to me.

I'm not sure, though, whether your proposals are sufficiently well thought out.

Dedicated late hour support staff: an SME with 8 full time employees does not sound like the size of company where this sounds practical. Plus, the hours in question are IMHO too early for people who look for a late side job (e.g. students), and too short for people who look for a day job. Also, for such staff to be sufficiently up to date with the day's work will require lots of additional communication. Don't underestimate the general working knowledge someone who works full time in a small company has also about their neighbours' work. This, btw., may also be a good reason why the CEO is pushing for more presence time. It's hard to grasp precisely, but the little chunks of communication that happen when working alongside really do carry a whole lot of information.

Technical checks: I guess there may be low-hanging fruit to earn here in terms of making the closing round less work. Making it unnecessary may be far more difficult - so I'm not sure this solves your main problem.

But I'd think negotiating for the following may be promising:

• Maybe it would already help to split the late-ish shift duties into

  • being on call for customers, which doesn't require presence, and
  • locking which does, but does not require the level of knowledge the customer service needs.

  Thus, it may be possible to spread the late(ish) presence duties over more shoulders - and maybe saving the commute goes some way to make on-call duty till 18:00 more compatible with your evening activities. (I may add that meeting people for me hardly ever happens before 18:00 - rare exceptions being a private "beer" with people from work where we start at work when leaving there.)

  Having been on such a task (in a chemical lab), I do see a whole lot of a difference whether this is once per week (and maybe even more during holidays) or once per month. And I also see that there may be reasons why this is better done by regular employees rather than e.g. security staff (who in my case wouldn't have chemical training in case of an accident, nor the training to shut down instrumentation or machinery etc.)

• It may be worth while to negotiate a limit for this task: that you (or anyone) do this task up to x days per month.

  I think it quite possible that it was less annoying to people in the past (because there happened to be sufficiently many who anyways liked later hours, because the CEO stayed late half of the days and did the closing round themselves, or any number of other reasons), but things have changed and the task needs to be adapted.