No Right of Co-Determination of the Works Council When Prohibiting the Private Use of Cell Phones and Smartphones at the Workplace

Background

In this case, the works council of an automotive supplier felt that its right to co-determination had been violated. The employer had unilaterally ordered that the private use of cell phones and smartphones during working hours be prohibited at workstations in production and in the shipping and incoming goods departments. This was because it was precisely in these departments that there were frequent short interruptions to work during various work steps. The employer’s intention with this regulation was to enable employees to concentrate better on their work during working hours. The increase in effectively used working time that could be achieved in this way would enable employees to carry out necessary ancillary work, such as tidying up the workplace or refilling consumables, even without specific instructions in individual cases.

Decision of the BAG

The First Senate of the Federal Labor Court has now decided that the works council had no right of co-determination in the present case with regard to the instruction to refrain from the private use of cell phones and smartphones during working hours in order to ensure proper work performance.

Although the works council is generally entitled to a right of co-determination with regard to questions of order and conduct of employees in the company pursuant to Section 87 (1) No. 1 BetrVG, in the specific context, however, this only extends to orders of the employer that concern the so-called orderly conduct of employees. These are matters that affect the order of the company and the conduct of employees in the company. The purpose of the works council’s right of co-determination is to ensure equal participation of employees in the organization of company life.

In this case, however, the employer’s measure also affected the employees’ working behavior. Therefore, the question of the works council’s right of co-determination had to be based on the predominant regulatory purpose of the order. This results from the objective content of the measure and the nature of the operational events to be influenced. The employer’s subjective ideas are irrelevant.

In the opinion of the BAG, the ban on the private use of cell phones and smartphones in question here is primarily to be regarded as a measure to control work behavior. It is objectively aimed at preventing private distractions and ensuring that employees can work quickly and with concentration. This also applies to times when production-related work interruptions are unavoidable. By virtue of its right to issue instructions, the employer may also assign certain (ancillary) work to employees during these periods to ensure that they can work. It does not matter whether the private use of the cell phone actually leads to a disruption of work performance.

In fact, the ban imposed by the employer may have a subordinate effect on the orderly conduct of the employees. In this context, it is also conceivable that the use of smartphones during working hours, e.g. by playing videos with the volume on, or making private phone calls, may disturb other employees. However, the fact that the ban may also have an impact on the orderly conduct of employees in addition to the main purpose described above does not make it subject to co-determination due to its primary focus on work behavior.

Practical note

The BAG has taken an employer-friendly position in a case that is extremely relevant in practice. Smartphones have become an integral part of everyday life and have a variety of functions, ranging from making phone calls to voice messages and video games. The possibilities for distraction are numerous, as are the possible uses. It is to be welcomed that the potential distraction caused by private cell phone use during working hours can be prevented by the employer without having to negotiate with the works council. However, since such measures often affect both work behavior and orderly conduct in the company, care must be taken to ensure that the focus of the measure is on controlling work behavior so as not to jeopardize the co-determination rights of the works council. This can be achieved, for example, by limiting the measure to working hours.

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