With its decision of October 17, 2023 (Case no. 1 ABR 24/22), the German Federal Labor Court ruled that a prohibition for employees to use their mobile phones for private purposes during working hours is not subject to co-determination.
The employer is a manufacturing company in the automotive supply industry. Due to operation-related waiting periods, there are unoccupied times the employees use to manage their personal affairs with their mobile phones. Therefore, the employer posted notices informing employees of the prohibition to use their mobile phones for private purposes during working hours. With reference to such measure being subject to co-determination, the works council unsuccessfully requested the employer to immediately revoke the measure and refrain from taking it in future. The works council then initiated labor court proceedings. The Braunschweig Labor Court and the Lower Saxony Higher Labor Court rejected the works council’s applications.
Even if the Federal Labor Court yet has to give reasons for its decision, it is at least clear that the Court agrees with the lower courts’ findings. Accordingly, the works council has no co-determination right. Pursuant to Art. 87 (1) No. 1 BetrVG (German Works Constitution Act), the works council must have a co-determination right in matters relating to the company’s organization and the employees’ conduct in the company. The subject of the co-determination right is the coexistence and cooperation of employees in the company which can be influenced and coordinated by the employer through rules of conduct or other measures on the basis of its management power. In contrast, regulations and instructions that directly specify the work obligation – so-called work conduct – are not subject to co-determination. If a measure has an effect on both conduct and work behavior, it depends on which regulatory purpose predominates. According to the instruction’s predominant regulatory purpose in this case, it does not regulate work-related conduct. Rather, the object of the measure is to determine which activities the employees must refrain from during their working hours.
Previously, the question of whether or not the works council has a co-determination right in connection with the prohibition to use mobile phones for private purposes during working hours has been controversial in case law (negative: Hesse Regional Labor Court case no. 5 TaBV 178/19, Rhineland-Palatinate Regional Labor Court Case no. 6 TaBV 33/09; affirmative: Munich Labor Court Case no. 9 BVGa 52/15). The German Federal Labor Court’s decision now provides legal certainty. However, it should be noted that the prohibition to bring mobile phones to the workplace or prohibiting their use in social areas during breaks remains subject to co-determination.