Desksharing, hotdesking and teleworking: are the employees entitled to compensation? 

In 2020, in the midst of the COVID-19 pandemic, the undersigned wrote an article entitled “Teleworking: are employees entitled to compensation?”. A decision by the Federal Court of 4 March 2025 (ATF 1C_328/2024) provides an opportunity to revisit this issue, particularly when employers offer desk-sharing or hot-desking, i.e. freely accessible, shared workstations without assigned seats.

The Federal Court ruling concerns an employee of the Lucerne Cantonal School of Applied Sciences and Arts. The employee worked as a teacher and was responsible for diversity. After terminating her employment contract, the employee asked the School for retroactive compensation for expenses related to teleworking, but the School refused. She filed an administrative appeal with the Cantonal Court of Lucerne. The ruling concerns a cantonal civil servant, but it can certainly be transposed to private employment relationships.

The Cantonal Court upheld the employee’s claim and ordered the Cantonal School to pay her CHF 12,000.

The Cantonal Court considered that there was no provision in the regulations applicable to the School’s staff for compensation for necessary teleworking, i.e. where no suitable workstation is available to the employee on the premises and teleworking is therefore necessary (and not simply a matter of the employee’s wishes or convenience). The Cantonal Court therefore considered that it had to fill a gap.

The Cantonal Court held that Article 22 of the OFP/LU provides for the right of employees to reimbursement of expenses that they must necessarily incur in order to fulfil their professional obligations.

For the Cantonal Court, this provision corresponds to Article 327a of the Swiss Code of Obligations (CO) under private law, which obliges employers to reimburse employees for expenses necessary for the performance of their work. Therefore, if teleworking is carried out in the employer’s interest, the employer must, in principle, reimburse the expenses. Thus, in accordance with the law and case law, the Cantonal School must compensate the employee. 

The Cantonal Court found that during the period in question, 120 teachers had worked at the School. They had access to “rooms reserved for teachers, which were apparently used not only by teachers but also increasingly by students, and where breaks, discussions and meetings also took place. According to the information provided by the complainant, the teachers had three rooms (Sentimatt, Baselstrasse and Viscosistadt) between 2018 and autumn 2019, then only one room in Viscosistadt from autumn 2019 onwards. However, as far as can be judged, these available rooms were small in relation to the number of teachers. For example, room 453 in Viscosistadt contained, among other things, four desks, a few chairs, a computer, a refrigerator and a bookcase (free translation of the above-mentioned decision).

The Cantonal Court also held, with regard to the employee, that “having worked 50-70% of full time and therefore having had a proportionally high amount of working time, it does not seem reasonable that she only had access to cramped and poorly equipped staff rooms with few workstations. It clearly seems neither possible nor reasonably required of the defendant that she be able to work in a concentrated manner five days a week in these rooms, which were used by a large number of people for various purposes. It is also irrelevant that the complainant received comments about the insufficient number of workstations, as it is clear that there were not enough workstations available” (free translation of the above-mentioned judgment).

Thus, the Cantonal Court considered it obvious that there were not enough workstations available and that it was irrelevant that the School had not received any complaints about the insufficient number of workstations.

The Federal Court does not share the Cantonal Court’s view.

For our High Court, the fact that 120 teachers work for the School does not allow the court to conclude that there is a shortage of space without determining the teachers’ needs more precisely. For the Federal Court, “it must be taken into account that the School presented the lower court with an email dating from 2018 in which it asked teachers to assess their needs for a well-equipped and functional staff room in Viscosistadt. The employee replied, in summary, that she had never seen the interior of this room because she had not had the opportunity to do so and because it was too far away for her. The employee did not mention the lack of available workstations.” Nor does it appear from the file that the employee informed the School of her specific needs or indicated that the premises were unsuitable for work or that there were not enough workstations. Nor does it appear that other teachers complained to the School about an insufficient number of workstations. Consequently, it is by no means clear that there were insufficient workstations, as long as it is not known how many teachers were using or wanted to use workstations. The School cannot be required to make workstations available to all teachers if only some of them need them” (free translation of the above-mentioned judgment). 

Again, according to our High Court, “the previous court dismissed as irrelevant the document provided by the School, according to which a needs assessment had been carried out among teachers, whereas it is important in this case to know whether the employee and the other teachers really needed additional or differently configured workstations. It thus disregarded, without objective reason, an important and decisive piece of evidence.“

The Federal Court therefore upheld the appeal by the cantonal school and referred the case back to the Cantonal Court for further investigation and reassessment. 

This ruling was commented on in the September 2025 UNINE newsletter by Me Marie-Thérèse Guignard^[1] . 

According to her, – and the undersigned shares her opinion -, the Federal Court’s ruling shows “the difficulty that can exist in practice in determining whether teleworking is carried out on an optional or necessary basis, particularly in cases where the employer implements a desk-sharing system in which the number of available workstations is lower than the number of employees. […]. The introduction of shared offices is regularly associated with a policy allowing staff to work (at least for part of their working hours) from home or another remote location.”

As Me Marie-Thérèse Guignard points out, “For some authors, this implies a general obligation on the part of the employer to reimburse the costs associated with teleworking.” For these authors, “the employer would only be exempt from this obligation if the employee has a workstation on the company’s premises at all times and can, with the employer’s agreement, work temporarily from home“.

The case of the employee of Cantonal School is more complex. Me Marie-Thérèse Guignard points out that the employee had a “designated office, which is occupied on certain days by another employee, so it seems clear that teleworking is necessary on those days. This situation must be distinguished from one in which the home-based employee could, if they wished, work on site because not all available offices are occupied during their teleworking days or periods. Indeed, the introduction of shared offices does not necessarily limit free access to a workstation. This is particularly the case when the proportion of available workstations is high in relation to the number of employees (… ) and when employees regularly work outside the office or from home.“

Me Guignard proposes setting “thresholds based on the sharing ratio, above which teleworking would be considered optional or, conversely, necessary“. She therefore proposes to “consider teleworking as optional when the sharing ratio is greater than 0.75 (i.e. when there are more than 75% of suitable workplaces in relation to the number of employees), and necessary when the sharing ratio is less than 0.5 (i.e. when there are fewer than 50% suitable workstations in relation to the number of employees), it being specified that lower thresholds should apply when part of the staff’s tasks are carried out outside the office anyway, for example at clients’ premises or while travelling.”

For Me Guignard, the case dealt with in this ruling illustrates “that although free access to a workstation does not always depend solely on the number of offices available in relation to the number of employees, it is also necessary to take into account, in particular, the actual need for employees to have an office in order to carry out their tasks […]. According to the Federal Court, it is not so much the number of teachers employed during the period in question that is decisive in assessing the (in)sufficiency or (in)appropriateness of the available workstations, but rather the number of teachers who use or want to use workstations.”

The undersigned shares Me Guignard’s opinion.

The Federal Court’s decision shows that teleworking, new working and organisational methods, such as desk-sharing or hot-desking, and the obligation of the employer to compensate the employees will continue to be a topic of discussion. This decision also shows that it is necessary to examine in each individual case whether teleworking is necessary or voluntary. In this examination, the fact that the number of employees exceeds the number of workstations does not in itself mean that teleworking is necessary and therefore that the costs must be reimbursed by the employer to the employee.

^[1] https://droitdutravail.ch/jurisprudence#analyse_TF%201C_328/2024