Smartphone bans in the workplace: Does the works council have a say?

 Ruling on the co-determination of the works council when banning personal smartphone use at work.

Dr. Yuanyuan Yin

Smartphone bans in the workplace: Does the works council have a say?

Many companies want to regulate the personal use of smartphones in the workplace. To date, is has been unclear whether or not the works council has a right of co-determination in this matter. The Lower Saxony State Labor Court (LAG) examined the issue (ruling dated October 13, 2022, Ref: 3 TaBV 24/22). However, a ruling by the Federal Labor Court (BAG) in these proceedings is still pending.

Personal smartphone use at work – the desire to impose rules vs. the legal reality

Most people have their smartphone with them around the clock – The same applies to employees in the workplace. However, given that personal smartphone use can often be time-consuming, more than a few employers are considering banning personal use in the workplace.

However, this raises the question as to whether employers can impose the corresponding rules at the company on their own. Or does this require the co-determination of the works council?

The Lower Saxony State Labor Court (LAG) examined the issue.

The case before the court

At an automotive supplier company with approximately 200 employees and a works council, the management decided to regulate personal smartphone usage in the workplace.

The employer posted a notice at the company prohibiting the personal use of cell phones or smartphones during working hours. At the same time, the employer threatened legal consequences if this prohibition was violated.

The works council was not particularly impressed with this notice. The works council demanded that the company remove the notice and reverse the smartphone ban in the workplace. The works council argued that it had a right of co-determination and had not been involved in the decision beforehand, as was required. In addition, the works council stated that it intended to pursue legal action against the employer for injunctive relief if the company failed to remove the notice.

After the employer refused to comply with this demand, the case was taken to court.

Ban on personal smartphone use in the workplace: no co-determination!

In the first instance, the Labor Court (ArbG) rejected the works council’s argumentation, ruling that the employer could impose a ban on the personal use of smartphones in the workplace alone and without co-determination. Regulations governing work behavior are not subject to co-determination. In the second instance, the State Labor Court also arrived at the same decision and dismissed the works council’s complaint.

Section 87 (1) No. 1 of the Works Constitution Act (BetrVG) only stipulates that the works council has a right of co-determination with regard to issues concerning the order of the company and the conduct of the employees at the company.

However, this right of co-determination does not extend to their actual working behavior, namely the employees’ behavior while they are performing their work activities. Regulations or instructions relating to the working behavior itself only serve to further define the actual work obligations and are, therefore, not subject to co-determination. Furthermore, the majority of employees are quite simply unable to perform their duties while using their smartphones for personal purposes. Accordingly, this situation also differs from “listening to the radio at work”.

If the employees’ personal smartphone usage is regulated during idle and waiting times in production, for example, such instructions primarily concern their behavior during work activities. As a consequence, the State Labor Court did not see any mandatory entitlement to co-determination in accordance with Section 87 of the Works Constitution Act (BetrVG).

Ruling not legally binding

However, this decision was not legally binding at the time of publication of this article. The proceedings are currently awaiting a hearing before the Federal Labor Court (BAG).

Many companies would like binding regulations governing personal smartphone use in the workplace during working hours.

The matter only requires a fundamental decision by the Federal Labor Court with regard to the co-determination obligation, even if the rulings by the Labor Court and State Labor court suggest a certain tendency against the co-determination obligation.