The Ghent Labour Court of appeal provides clarifications on the employer's monitoring of employee private mobile phone use
Many companies currently provide their employees with a mobile phone and accompanying contract, which they can use for private purposes. In a 12 May 2014 judgement, the Ghent Labour Court of appeal dealt with the following questions related to the monitoring of mobile phone (abusive) private use by employees:
1. Could the employer use the invoices as proof of the abusive use of the company’s phone?
2. Can the employee be held liable for excessive private use of the company’s mobile phone in the absence of any internal policies limiting private use?
In the case at hand, an employee called astrology lines on a daily basis with the mobile phone made available by her employer. The costs of such calls were adding up to EUR 90 per day. The employer claimed the reimbursement of these call costs. The employee argued that the employer’s monitoring of the telephone invoices without her consent constituted a violation of her privacy as it implied at least partial knowledge of the phone calls’ content. Therefore, the employer could, in her view, not lawfully use the invoices.
In first instance and in appeal, the Courts ruled that:
- Employers paying for mobile phone contract are entitled to exercise control over invoices, a practice that does not strictly hinder the protection of employees’ privacy.
- Even in the absence of an internal policy regarding private use of mobile phones within the company, employees must still use the company’s phone in good faith.
- The employee is liable for damages caused by her abusive use of the company’s mobile phone (80 to 90% of all phone calls concerned astrology lines while only 150 out of the 2.210 minutes were professional calls).
The decision has two major consequences:
1. The Court confirms the right for an employer to monitor the private use of mobile phones made available to employees and this itself is not a breach of their private life.
2. The Court confirms the right for an employer to be reimbursed for the cost of private calls that can be considered as ‘abusive’, even in the absence of an internal company policy. Until now, there was little case law on the subject except for cases where the employee was dismissed on grounds of serious violation.
Although this decision is quite positive for the employers, it is advisable for companies to establish a clear internal policy regarding the private use of mobile phones (and other company property).
