Updated: Nov 9, 2021
Constant availability thanks to a business mobile phone: What is allowed at all?
Nowadays, many employers provide their employees with a business mobile phone. Many hope that this will improve their accessibility. Thus, an appointment is postponed at the last minute, emails are answered while on the road and the meeting with the boss is arranged via WhatsApp chat even after work hours. But what is the legal situation?
Reachability is important. A life without a smartphone, without being constantly reachable, is almost inconceivable nowadays; in private as well as in business. There is no question that this accessibility can become a burden. In the meantime, there are countless websites, guides and coaches who give tips on the ideal work-life balance and denounce constant reachability. After all, everyone feels differently about whether being reachable feels more or less stressful.
Regulations on accessibility on the business mobile phone
However, there are also legal questions: privacy and data protection, labour law standards, working hours and rest periods, remuneration or holiday entitlements. From the point of view of labour law, there are some very clear rules. Within these rules, however, the employer's room for manoeuvre regarding accessibility remains relatively large. There is no uniform approach. Ultimately, the central element for both employees and employers is the employment contract. There, working hours, availability and remuneration are regulated accordingly. A brief overview:
What is considered working time?
Basically, any period of time during which the employee has to be at the employer's disposal is considered working time. In this context, working time is not tied to a specific place or a specific means of production. Whether the employee makes a telephone call or answers e-mails during his or her free time: in the final analysis, this counts as working time under both public and private law. If the breaks between different short work assignments are too short to be used entirely privately, they are considered working time. The details are regulated in the employment contract. In principle, however, employees do not have to be available around the clock. The Labour Act (ArG) stipulates the maximum amount of time an employee must spend at work.
No permanent availability without consent
If an employer requires employees to be available at all times, this must be stipulated in the contract. Thus, the following applies in principle: Constant accessibility is not permitted without the employee's consent. The employer cannot force employees to work during their free time.
According to the Labour Code, night and Sunday work is only permitted if a corresponding permit exists. Again, there are exceptions, in emergencies or for on-call duties, for example. The fact remains: The general conditions must be laid down in the contract.
Remuneration for constant availability
Those who work during their free time - even voluntarily - are not necessarily paid for it. The remuneration for working during private time is not legally clear and can be negotiated by the employer in the employment contract. For example, it may be that part of the free time spent on work is already included in the regular salary. The waiver of overtime compensation can also be agreed in the employment contract. This is particularly the case with management contracts.