Berlin. Is there a landline phone on your desk? Or do you manage your career through your cell phone in your business? Especially in times of hybrid work, the company’s smartphone has spread as a work tool in many places. It is a good idea for employees to be aware of the legal rules. The most important questions and answers at a glance.
Are employees entitled to a company cell phone?
“No, this is at the discretion of the employer,” says Peter Meyer, a lawyer who specializes in labor law in Berlin. The business owner can decide whether to provide a mobile phone to the company and to whom not.
He has no obligation to treat everyone equally. “If other colleagues use a company cell phone, that in and of itself does not justify the right to a phone,” says Daniel Stach, an attorney at Verdi.
However, according to Stack, a legally enforceable claim for a company’s mobile phone can arise from an employment contract, from a service or company agreement or from a collective agreement. “It is therefore recommended that you read the relevant provisions of the employment contract carefully.”
What if employees are on the phone outside of normal business hours?
In such cases, employers usually provide a mobile phone to the company voluntarily. “This is the case, for example, when there is an on-demand service in a company,” says Peter Mayer. Or superiors expect to be available by phone, for example in the evening or on the weekend.
Then employers also bear the costs of the mobile service provider. “After all, no one can force employees to use their own cell phones to make business calls,” says Daniel Stach.
What applies if I work in a home office?
“That’s exactly when employees need a company cell phone,” says Peter Meyer. Verdi’s specialist Stach points out that it does not comply with German labor law if employees are to use their own mobile devices at work.
Therefore, employers will provide needs-based equipment with company cell phones, laptops, and other portable devices, mostly on a voluntary basis.
Can an employee refuse the company’s cell phone?
“In principle not,” says attorney Meyer. If a company mobile phone is required from the employer’s perspective, employees must use it during business hours and be accessible. “But of course an employer cannot forbid an employee to use a separate private mobile phone,” Meyer explains.
According to Daniel Stach, employees are not required to leave the company’s mobile phone unlocked after work. “Employees have the right not to be around in their spare time.”
Can I use my work mobile phone privately?
As a rule, employees are not allowed to use their company’s mobile phone, which is the property of the employer, for private purposes. “There is an exception when the employer allows or tolerates private use,” Stach says.
In order to be tolerated in this sense, it is not enough for employees to also use the company’s machine privately for a long time, he explains. The employer must know that the employee uses the device privately.
“But private use is only tolerated for a reasonable period of time,” explains Stach. What is “appropriate” depends on the specifics of each individual case.
What if the company’s cell phone is damaged or broken?
“Employees must immediately notify their employer of any damage or defects on the company’s mobile phone,” says Peter Meyer.
According to Stach, if there is no employment contract, collective bargaining agreement, or company on how to handle a broken company’s cell phones, employers must decide for themselves whether they want the defective device to be repaired, replaced, or to do without the mobile device in the future.
In the case of damage to the property of the employer due to operational activities, who bears the costs depends on the degree of fault of the employee in the individual case.
And what if the company’s mobile phone breaks down in your spare time?
“Employees may have to pay compensation to the employer,” says professional lawyer Meyer. This depends on whether they intentionally or negligently caused damage to the business owner’s property. “However, liability can be limited or excluded through joint negligence on the part of the employer, for example, if he fails to take safety precautions and controls,” explains Daniel Stach.
If the mobile phone broke during a private vacation, the question of liability also depends on whether the damage occurred in connection with a business or a private activity. “Only in the first case is liability mitigation applied in accordance with the principles of internal damage compensation,” says Stach.
Who pays if I withdraw my contract?
“If the company’s cell phone is used for purely commercial purposes, the business owner must also pay the additional costs,” says Peter Mayer. Difficulties can arise if employees do not use the company’s cell phone only for professional purposes, but employers do not want to incur the costs of private calls and surfing the Internet.
“Here to conclude an agreement with the company’s interest groups in order to avoid billing problems,” advises Daniel Stach.
What are the consequences of breaking the rules?
“Employers can warn employees,” says attorney Meyer. This could be the case if employees ignore the explicit prohibition of privately using the company’s cell phone.
Union Secretary Stach warns: “In the worst case, a breach of duty can lead to dismissal.”
© dpa-infocom, dpa: 220627-99-820676 / 2