Site closed: working from home instead of dismissal with an offer of altered terms?

In December 2023, an employer closed its site and dismissed an employee for operational reasons with effect from 31 October 2024 — combined with the offer to continue the employment relationship on otherwise unchanged terms at another site. The employee had previously worked from home three to four days a week. He challenged the dismissal with an offer of altered terms (Änderungskündigung), arguing that the employer should instead have offered him full-time work from home — this was not an innovation, but merely the continuation of his previous way of working and therefore the less drastic measure compared with a transfer.

The BAG (Federal Labour Court) did not deal with this question on the merits (BAG, judgment of 30.10.2025 – 2 AZR 302/24). The employee's appeal on points of law (Revision) was dismissed as inadmissible — not on the merits, but because he had not addressed the reasons given by the Regional Labour Court (Landesarbeitsgericht) in the manner required by § 72(5) ArbGG (Labour Courts Act). The central legal question of whether full-time work from home is to be regarded as a less drastic measure compared with a dismissal with an offer of altered terms in the event of a site closure thus expressly remained open.

For practice, this means: there is still no clarification by the highest court as to whether employers are obliged to offer working from home, where already practised, as a less drastic measure before a transfer or a dismissal for operational reasons. The starting point remains the employer's right to issue instructions regarding the place of work (§ 106 GewO, Trade Regulation Act) — there is still no general statutory right to mobile working in Germany. Whether, in an individual case, a working-from-home practice followed for years gives rise to a duty to take it into account in the proportionality assessment thus remains a question of the individual case.

Anyone wishing to challenge a dismissal with an offer of altered terms following a site closure should take one thing above all from these proceedings: the substantive arguments decide nothing if the grounds of appeal do not meet the formal requirements. Particularly with a legal question that is still open and of great practical relevance, such as this one, carefully prepared litigation from the outset is worthwhile — for employees who wish to rely on an established working-from-home practice, as well as for employers who wish to justify their transfer decision in a legally sound manner.