At a glance
- Companies may prohibit the private use of mobile phones during working hours without having to obtain the consent of the works council.
- With its decision, the Federal Labour Court has provided clarity on the question of the extent to which employers can regulate the private use of mobile phones at the workplace and whether they are dependent on the consent of the works council.
- Previously, this question had been answered differently by the courts of lower instances.
Background
In the underlying case, a company within the automotive supplier industry communicated to its employees via a notice that using mobile phones and smartphones for private purposes during working hours was prohibited. The works council considered this instruction to be unlawful, asserting that the ban was issued without prior consent of the works council.
The legal assessment depends largely on whether the private use of mobile falls under work behaviour (pertaining to an employee’s performance) or organisational conduct (related to social interactions among employees and maintaining business order). While rules concerning an employee’s performance do not require works council co-determination, matters of organisational conduct are subject to mandatory co-determination as stipulated in Section 87(1)(1) of the Works Constitution Act. However, it’s not always straightforward to distinguish between work behaviour and organisational conduct. In such cases, the assessment relies on the purpose of the respective measure.
The Federal Labour Court correctly assumes that the ban on private mobile phone use during working hours primarily pertains to work behaviour. Its purpose is to prevent employees from diverting their attention to personal matters instead of fulfilling their work duties. By enforcing this ban, employers ensure that employees focus exclusively on their tasks without frequent interruptions caused by phone engagement. Importantly, this prohibition does not impact organisational conduct, which encompasses social interactions. Consequently, the works council do not need to be involved in this specific matter.
Takeaways for employers
The decision as to whether employees may pursue private activities during working hours is the sole responsibility of the employer. This also applies even in companies where there is a works council. If the company wishes to prohibit the use of private mobile phones and smartphones during working hours, it is not required to obtain the works council’s consent. The same applies if a company instructs its employees not to use the work equipment provided to them for business purposes during their free time (‘digital time-out’). According to the Federal Labour Court, this instruction also relates to work behaviour and is therefore not subject to works council co-determination (case no. 1 ABR 52/14).
