Ban on mobile phones usage during working hours - no co-determination right of the works council
Written By
Associate
Germany
As an associate and member of our International HR Services practice group in Düsseldorf, I advise our domestic and international clients on all aspects of individual and collective employment law and social security law.
Smartphones are part of everyday life for most people these days, and form part of their private lifestyle. However, the use of private mobile phones at work can also lead to considerable distraction and impair employees' work performance. For this reason, the private use of smartphones is often restricted or prohibited by employers, particularly in production facilities.
In October 2023, the Federal Labour Court (BAG) dealt with the question of whether the works council has a right of co-determination in the event of such a ban on private mobile phone use by the employer (BAG; decision of 17.10.2023 – 1 ABR 24/22).
What happened in the specific case?
In the case decided here, the employer, a manufacturer of brake and fuel systems for vehicles, had prohibited any use of smartphones for private purposes during working hours and threatened to impose consequences under labour law in the event of non-compliance. The company had not obtained the prior consent of its works council. The works council had requested that the employer be ordered by court to refrain from issuing such a ban without its prior consent.
After the previous court instances also refused the works council's request, the BAG rejected the works council's application as well. The ban on the private use of mobile phones during working hours did not require the consent of the works council.
Organisational conduct vs. work conduct
The question of whether the ban on private mobile phone use is subject to the works council's right of co-determination depends on whether the regulation affects the organisational conduct or the work conduct of the employees.
Organisational conduct is subject to co-determination by the works council, and is affected if the employer's measure is aimed at shaping collective cooperation in the company or ensuring and maintaining the predetermined order of the facility. In contrast, work conduct of employees is affected if the employee's duty to work is directly demanded or specified. The regulation of work conduct is solely at the discretion of the employer; the works council has no right of co-determination in this respect.
It is possible that a measure taken by the employer may have an impact on both organisational and work conduct. In this case, whether the measure is subject to co-determination depends on which regulatory purpose predominates. The regulatory purpose is determined by the objective content of the measure and the nature of the operational procedures to be influenced. However, it is not relevant which subjective ideas motivated the employer to take the measure.
Predominance of work conduct
In this case, the ban on private smartphone use was primarily aimed at controlling work conduct, according to the BAG. The distraction caused by the smartphone was to be prevented by the measure in order to ensure speedy and focused work.
The fact that the ban also applied to areas in which there are necessarily frequent work interruptions, such as in production, shipping, and incoming goods, was not relevant to the court's decision. The employer also had the right to issue instructions during work interruptions and could assign employees other tasks for this period. Whether tasks are actually carried out during this period is irrelevant. Work performance does not have to be specifically impaired by the use of smartphones or mobile phones.
The private use of smartphones can also disturb other employees if, for example, music and videos are played loudly, or telephone calls are made. Such disruptions affect operational interaction and thus also organisational conduct, which is subject to co-determination. However, in this case, the employer did not primarily aim to prevent such disruptions, but rather wanted to regulate work conduct – which can be seen, among other things, in the restriction of the ban to working hours only. According to the BAG, the fact that the ban could also affect organisational conduct is not relevant, as a corresponding prohibition by the employer typically and primarily concerns work conduct.
Furthermore, the existence of a right of co-determination did not depend on the lawfulness of the measure. The works council had argued that the use of smartphones was socially acceptable and that the ban could restrict the employees' personal rights too much. The BAG did not rule on this point, as it was not relevant to the existence of a right of co-determination. The unlawfulness of the measure does not establish a right of co-determination, nor does it cease to exist if the measure is lawful.
