The increasing prevalence and importance of smartphones in people's day-to-day lives has led to employers becoming increasingly concerned that their workers are too absorbed in their smartphone to carry out their jobs effectively. Employers may therefore be considering ways in which they can ban or restrict their use by employees at work. But how far can they go in doing this?
There has been an increasing trend for employers to include provisions in employment contracts that specifically restrict employees from using their smartphones during working hours. But what should be considered when including such clauses, and just how effective are they?
The first consideration should be whether an existing employment contract needs to be amended, or a new one is being drafted. Strictly speaking, any changes to the terms of an existing contract must be agreed. Employees may be resistant to additional restrictions being placed on them in their employment contract and refuse to agree to the change.
In reality, the employer may be able to unilaterally amend the terms of the employment contract without the employee having much option but to accept the revised terms. The employer could also include the restriction in a revised contract which includes other more favourable changes to the terms of employment, such as a pay rise. The employee will have to accept the restriction if they want to receive the pay rise.
Alternatively, the employer could simply instruct the employee not to use their phone during working hours, without having to amend the employment contract. Employees must obey their employer's lawful and reasonable instructions. A failure to do so would give grounds for disciplinary action.
Employers should also determine the scope of the limitation. Will they impose a blanket ban and require employees to lock their phones away for the duration of their shift? Entirely restricting the use of smartphones during working hours would leave employees without a means of communicating when required.
A workable solution could be for employers to supply their employees with a work phone, the use of which can then be restricted and monitored. The employer can issue instructions setting out rules which must observed when using the work phone and the consequences of breaching those rules. Under applicable data protection legislation (the GDPR) employers are required to ensure that any monitoring is proportionate and not excessive, and that employees are informed of any monitoring and their rights in relation to it.
Of course, some employers may not be entirely against the use of smartphones at work and be comfortable with limited and responsible phone use which does not interfere with the employee carrying out their duties. Guidelines should be given as to what type and level of use is permitted.
Employees who use their smartphones during working hours not only run the risk of failing to devote their time and attention to their duties, but also potentially committing personal data breaches. Photos, videos or other content which employees post online may include personal data relating to the employer or their clients, so clear guidelines should be issued to control this.
An employer will also generally be acting as a data controller under the GDPR. They must therefore issue the employee with a privacy notice informing them about any of their personal data that they hold.
They should also have a basic data protection policy in place which sets out what is required of the employee when handling personal data, including that of the employer, when carrying out their duties. Any breach of the standards required under the data protection policy will give grounds for disciplinary action up to and including dismissal.
Paige Tompkins is a solicitor and Chris Weaver an associate in the employment department at Payne Hicks Beach