No works council co-determination regarding the ban on private use of mobile phones
Companies may prohibit the private use of mobile phones during working hours without having to obtain the consent of the works council. This was decided by the Federal Labour Court on 17 October 2023 (case no. 1 ABR 24/22), confirming a decision by the Regional Labour Court of Lower Saxony dated 13 October 2022 (case no. 3 TaBV 24/22), according to which the ban on the private use of mobile phones is not subject to co-determination of the works council. In the underlying case, a company from the automotive supplier industry had informed its employees by means of a notice that the use of mobile phones and smartphones for private purposes was not permitted during working hours. The works council considered this instruction to be unlawful because the ban was issued without prior consent of the works council.
Private use of mobile phones during working time is related to employee performance
With this decision, the Federal Labour Court has provided more 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. While the Regional Labour Courts of Hesse and Rhineland-Palatinate had rejected the works council's right to co-determination, the Munich Labour Court decided that the works council's consent was required.
The legal assessment depends largely on whether the private use of mobile phones is a matter of work behaviour (ie the employee’s performance) or organisational conduct (ie the social interaction of the employees and the good order of the business). While the rules relating to the employee’s performance are not subject to works council co-determination, the organisational conduct is subject to mandatory co-determination in accordance with section 87 para. 1 no. 1 Works Constitution Act. Of course, it is not always possible to distinguish clearly between work behaviour and organisational conduct. It such cases, the assessment will depend on the purpose of the respective measure.
The Lower Saxony Regional Labour Court and now also the Federal Labour Court correctly assume that the ban on private mobile phone use during working hours relates to work behaviour. The ban is intended to prevent employees from pursuing private interests during their working hours instead of fulfilling their work duties. This ensures that employees concentrate exclusively on their work and do not repeatedly interrupt it by engaging with their phones. Meanwhile, the organisational conduct, i.e., the social interaction, is not affected by the ban. Consequently, the works council does not need to be involved in this matter.
The decision as to whether employees may pursue private activities during working hours is the sole responsibility of the employer. This also applies 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 (keyword: 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).