Right of co-determination when prohibiting private use of mobile phones during working hours

Munich Labor Court, ruling dated 18.11.2015 – 9 BVGa 52/15

The ban on the use of mobile telephones for private purposes during working hours or the instruction to have any use approved by a superior, concerns the orderly conduct of employees and thus triggers a co-determination right of the works council.

The petitioner was the works council formed in the respondent’s organization. The respondent sent an email instruction to all employees at its Munich site, prohibiting the use of personal mobile telephones for private purposes during working hours and stating that any use of mobile telephones, whether for company or private purposes, required the prior approval of a superior. The prior consent of the works council to this ban on mobile telephones was not obtained.

Company order fundamentally affected

The Munich Labor Court saw the arbitrary conduct of the respondent as disregard for the co-determination rights of the works council. The ban on the use of private mobile telephones during working hours or the instruction to have all use – for private or company purposes – approved by a superior, concerns the company order and the conduct of employees in the company, and is therefore subject to co-determination in accordance with Section 87 Subsection 1 No. 1 BetrVG (Works Council Formation Act). A reference to company order is given merely on the basis of the fact that other employees could be disturbed by the private use of mobile telephones at the place of work.

Work conduct fundamentally not affected

On the other hand, the co-determination-exempt work conduct of the employees is not generally affected by a ban on mobile telephones. It is the duty of the employee to perform his/her work in concentrated manner, quickly and free from errors. Nevertheless, there are many conceivable situations in which private use of a mobile telephone is compatible with proper performance of work. A short glance at the mobile telephone to check for missed calls or text messages does not fundamentally prevent proper working. Rather, it can even be beneficial for the ability to concentrate on the work if an employee knows that he can be contacted at any time by children or persons requiring care. The Munich Labor Court also refers to a decision of the BAG (Federal Labor Court) in 1986, in which the BAG took the view that the playing of music (the specific case involved listening to the radio) – something that is also no problem today with mobile telephones – does not necessarily hinder proper work (BAG dated 14.1.1986, File ref.: 1 ABR 75/83).

Not every ban on mobile phones subject to co- Determination

In the opinion of the Munich Labor Court, the co-determinationexempt work conduct can only be affected by a general ban on mobile telephones if employees are, for example, in direct contact with customers during working hours (as in sales meetings) since, in these cases, the instruction has a direct effect on the work performance prescribed by the employer under its right to issue instructions (no listening to music, no reading of messages during a sales meeting). Here, a ban on mobile telephones could be issued without first hearing the works council.

Divergent case law

To date, the BAG has not had to concern itself with the question of whether prohibiting private use of mobile telephones during working hours is subject to mandatory co-determination of the works council. In 1999 (ruling dated 30.10.2009 – 6 TaBV 33/09), the LAG Rhineland Palatinate took the view that the works council has no right of co-determination in these cases. In the opinion of the LAG, direct impairment of the work performance through use of a mobile telephone cannot be excluded. In addition, passive listening to the radio during working hours – which the BAG was required to decide on (see above) – also differs clearly from active use of a mobile telephone.

Summary

Whether a general ban on private use of mobile phones during working hours is subject to mandatory co-determination of the works council has thus far not been conclusively clarified. An appeal has been lodged with the State Labor Court Munich against the decision of the Munich Labor Court (10 TaBVGa 18/15). As long as there is no clear line in case law, employers are well advised to reach a mutual ruling with the works council on any intended general ban on the private use of mobile telephones. This regularly also increases acceptance among the staff.