Company cell phone: Experts answer the most important questions – you don't always have to be available

Created: 06/29/2022, 09:35 am

Anyone who works a lot on the move usually also needs a company cell phone.

© Tobias Hase/dpa-tmn

Company mobile phones have long been an integral part of the world of work.

But is every employee actually entitled to this?

And what am I allowed to do and what not?

Lawyers clarify.

Is there a landline phone on your desk?

Or do you manage your professional life via your work cell phone?

Especially in times of hybrid working, the company smartphone has become established as a work tool in many places.

It is good if employees are familiar with the legal rules.

The most important questions and answers at a glance.

Are employees entitled to a company cell phone?

"No, that is at the discretion of the employer," says Peter Meyer, a specialist lawyer for labor law in Berlin.

The employer can decide whether and to whom he makes a company mobile phone available and who not.

He is under no obligation to treat everyone equally.

"If other colleagues use a company mobile phone, that does not in itself justify the right to get one yourself," says Daniel Stach, a lawyer at the Verdi trade union.

According to Stach, however, it can happen that a legally enforceable claim to a company mobile phone results from the employment contract, from a service or company agreement or from the collective agreement.

"It is therefore advisable to read the relevant employment contract provisions carefully."

And what if employees have to be available by phone outside of regular working hours?

In such cases, employers usually provide a company mobile phone voluntarily.

"This is the case, for example, when there is an on-call service in a company," says Peter Meyer.

Or superiors expect to be available by telephone, for example in the evenings or at the weekend.

Then employers also bear the costs for the mobile phone provider.

"After all, no one can oblige employees to use their private mobile phones for business calls," says Daniel Stach.

What applies if I work in the home office?

"It is precisely then that employees need a company mobile phone," says Peter Meyer.

Verdi specialist Stach points out that it is not compatible with German labor law if employees are to use their private mobile devices for work.

Employers would therefore provide needs-based equipment with company cell phones, notebooks and other mobile devices, mostly on a voluntary basis.

Can an employee refuse a company cell phone?

"In principle no," says lawyer Meyer.

If a company mobile phone is required from the employer's point of view, employees must use it during working hours and be reachable.

"But of course the employer cannot forbid the employee to use a separate private mobile phone," Meyer clarifies.

According to Daniel Stach, employees are not obliged to leave the company mobile phone switched on after work.

"Employees have the right not to be available in their free time."

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Can I use my work cell phone privately?

As a rule, employees are not permitted to use their company mobile phone, which is owned by the employer, for private purposes.

"An exception is when the employer allows or tolerates private use," says Stach.

For a toleration in this sense, however, it is not enough that employees have also used the company device privately for a long time, he clarifies.

The employer must know that the employee is using the device privately.

"However, private use is only tolerated for a reasonable period of time," explains Stach.

What is "reasonable" depends on the specifics of each individual case.

What if the company cell phone is damaged or broken?

"Employees must inform the employer immediately about damage or defects to the company mobile phone," says Peter Meyer.

According to Stach, if there is no employment contract, company or collective bargaining agreement on how to deal with broken company mobile phones, employers must decide for themselves whether they want to repair the defective device, replace it or do without the mobile device in the future.

In the case of damage to the employer's property caused by operational activities, who bears the costs depends on the extent of the employee's fault in the individual case.

And what if the company mobile phone breaks down in your free time?

"Employees may have to pay the employer compensation," says specialist lawyer Meyer.

That depends on whether they intentionally or negligently caused damage to the employer's property.

"However, liability can be limited or excluded if the employer is partly to blame, for example if he has failed to take safety precautions and controls," explains Daniel Stach.

If the mobile phone breaks during a private vacation, the question of liability also depends on whether the damage occurred in connection with a business or private activity.

"Only in the first case does the mitigation of liability apply according to the principles of internal damage compensation," says Stach.

Who pays if I overdraw my contract?

"If the company cell phone is used purely for business purposes, the employer must also pay for the additional costs," says Peter Meyer.

Difficulties can arise if employees do not only use the company cell phone for professional purposes, but employers do not want to bear the costs for private calls and Internet surfing.

"In this case, it is advisable to conclude an agreement with the company interest groups in order to avoid problems with billing," advises Daniel Stach.

What are the consequences if I break the rules?

"Employers could warn employees," says lawyer Meyer.

This can be the case if employees disregard the express ban on using the company mobile phone privately.

Union secretary Stach warns: "In the worst case, the breach of duty can result in termination."