Banning smartphones in the workplace.

 Regulating private smartphone use in the workplace is not subject to co-determination by the works council.

Dr. Markus Dreyer

Banning smartphones in the workplace.

Employers often make rules regarding private smartphone use in the workplace even without involving the works council. This is permissible according to a ruling by the Lower Saxony State Labor Court and upheld by the Federal Labor Court (BAG decision dated November 17, 2023, Ref: 1 ABR 24/22).

Smartphones prohibited during idle times and waiting times

Production employees at an automotive supplier wanted to use their smartphones during idle times and waiting times. However, their employer objected and posted a notice at the company:

“Dear Sir or Madam,
Please be aware that use of cell phones/smartphones for private purposes during working hours is prohibited. Violations may incur consequences under employment law – up to and including termination without notice.”

The company had a justified reason, given that employees were expected to independently take care of other tasks during the idle times and waiting times rather than distracting themselves with their smartphones.

The workforce was anything but enthusiastic about this rule. The works council was also displeased, asserting that this regulation was subject to the co-determination rights of the works council. Yet precisely because the works council had not been involved, it first demanded that the ban be withdrawn. Without success. The works council then attempted to force the company to withdraw the ban in court.

Court injunction failed

However, the court proceedings were equally unsuccessful as both the labor court and then state labor court (LAG), in the next instance, ruled that the works council did not have any say in this matter.

The right of co-determination applies (Section 87 (1) No. 1 of the Works Constitution Act (BetrVG) to situations in which the employer’s regulations concern the organization of the company and the conduct of the employees. Conversely, regulations and instructions which pertain to work behavior itself only serve to further detail the work obligations arising from the employment contract.

No co-determination by the works council in cases like these! Specifically, the company is attempting to prevent behavior contrary to the actual work performance: Employees who use their smartphones during idle or waiting times cannot perform the required secondary work during this time.

Appeal also unsuccessful

The works council refused to accept the ruling of the state labor court and appealed to the Federal Labor Court (BAG). The works council was also unsuccessful here. The Federal Labor Court dismissed the appeal, also ruling that the works council had no right to co-determination regarding smartphone bans in the workplace which concerned the employees’ work behavior.

Moreover, the decision by the Federal Labor Court also indicates that alongside the conditions under which the use of smartphones at the workplace must be assessed in terms of collective bargaining law (particularly regarding the involvement of the works council), it is also essential to clarify how smartphone use can be restricted on an individual legal basis such as through provisions in the employment contract.

What can we do for you?

Do you want to regulate certain issues at your company and are unsure whether you need to involve the works council or how to govern the use of smartphones in employment contracts? We will clarify this for you! Do not hesitate to contact us!

Summary of the key facts:

  • Employers can set rules governing the use of smartphones in the workplace during working hours.
  • Employers do not have to involve the works council when drawing up the rules if these regulations concern work behavior rather than the company organization and employee conduct.