No co-determination right of the works council on the use of ChatGPT and private smartphones during working hours

Hamburg Labor Law, decision of January 16, 2024 – 24 BVGA 1/24 (BeckRS 2024, 547)

In the facts heard before the Hamburg Labor Court, the works council tried to enforce, by urgent motion, that the employer (a manufacturer in the area of medical technology) prohibits its employees to use so-called chatbots, such as ChatGPT (and other systems based on artificial intelligence (AI)). The employer wanted to provide its employees with the AI as “new work tool” for the employees’ support and on a voluntary basis and, if applicable, even at its own cost. For the respective use, the employer published corresponding guidelines and a manual. However, the chatbots’ software was not to be installed on the employer’s servers and systems. Rather, the chatbots were to be used via the web browser (which would require the employees to implement their own private account with the respective provider in advance). The works council protested and saw a violation of its co-determination rights pursuant to Art. 87 (1) No. 1 BetrVG (German Works Constitution Act) (concerning the (orderly) conduct of employees in the company), No. 6 (concerning the processing of personal information) and No. 7 (relating to the employees’ psychological stress). 

The Hamburg Labor Court did not see – at least not within the scope of the summary proceedings – corresponding infringements and rejected the works council’s motion partly as unjustified and partly as inadmissible. The court holds the opinion that the provisions on the use of ChatGPT (and comparable tools) are subject to work conduct which does not require co-determination: This is because, in this respect, the use-related specifications set by the employer in the guidelines and the manual are to be understood as orders of the employer, which only concern the manner in which the work is performed and not the orderly conduct, so that the right of co-determination under Art. 87 (1) No. 1 BetrVG was not affected. Furthermore, no personal data is processed. Although the chatbots record data, the mere recording of data does not lead to co-determination because the resulting monitoring pressure is not exercised by the employer, but by the respective chatbot. The employer could not access the information obtained by ChatGPT, for example. In this respect, the use of ChatGPT is similar to the use of legal databases (e.g., “Beck-Online”), where the users also create their own account. The identification and the associated possibility for the employer to control who uses chatbots in the company was effected in this case by the employee himself. Since the employer has already implemented a group works agreement on the use of web browsers already at group level, the works council’s right of co-determination based on the fact that user data is recorded via browser use had already been sufficiently taken into account and no further requirements for co-determination had been met. Finally, the works council had failed to present a concrete health risk resulting from the AI’s use, so that the Labor Court was also not able to identify any violation of the co-determination right pursuant to Art. 87 (1) No. 7 BetrVG (“mental stress”), which had also been claimed.

Note on the proceedings’ status: The main proceedings have now been conducted, but the decision has not yet been published.

Practical advice

The Labor Court’s decision points in the positive direction – from the employer’s point of view – of not necessarily assessing AI-supported chatbots as a measure subject to co-determination. However, the employer had drafted clever and balanced guidelines for use and thus ensured that the areas subject to co-determination (“web browsers”) were already sufficiently covered by a works agreement. Of course, it remains to be seen whether the court will uphold its opinion in the main proceedings and/or whether the decision will stand up to appeal. Nevertheless, the decision shows once again that employers who prepare and plan their measures carefully can be protected from disadvantageous execution and implementation.

BAG decision of October 17, 2023 – 1 ABR 24/22

In the second case decided by the German Federal Labor Court (BAG), the employer had issued written work instructions to its employees prohibiting the “use of mobile phones/smartphones for private purposes during working hours” and informed the employees that violations of these instructions would have consequences under labor law. The company’s elected works council felt that the employer’s unilateral order violated its right of co-determination pursuant to Art. 87 (1) No. 1 BetrVG because the instruction affected the employees’ orderly conduct in the company. Like the lower courts, the Federal Labor Court has now rejected the works council’s legal opinion and found that the ban issued by the employer primarily controlled the employees’ work behavior. Whether the measure relates to work behavior not subject to co-determination or to orderly conduct subject to co-determination pursuant to Art. 87 (1) No. 1 BetrVG depended on the measure’s objective content and the nature of the operational procedures to be influenced. In this respect, the BAG ruled that, according to the objective content, the purpose of the instruction was to ensure that employees can work fast and focused by preventing distractions of a private nature. This also applied if the use of private cell phones remained prohibited during work interruptions allowing the employer to ensure that employees can be assigned other work. In this respect – according to the BAG – the prohibition was limited to working hours and thus to the control of work conduct that is not subject to co-determination. This regulatory purpose prevailed, which is why it was irrelevant whether the use of the mobile phone might (also) affect cooperation and thus the orderly conduct.

This decision is particularly relevant as the courts of lower instances in the past ruled that a ban on the use of mobile phones during working hours was subject to co-determination in some cases. However, with this extremely practice-relevant decision, the BAG has now clarified that the employer has the option of ensuring his employees’ proper performance of their tasks by issuing instructions not being subject to co-determination.

Practical advice

If the use of mobile phones has not already been excluded by the employment contract or a company agreement, the employer can prohibit their use in exercising its right to issue instructions. The instruction is subject to the so-called “fairness test”. A ban on the use of mobile phones that has already been laid down in the employment contract or a works agreement is not subject to this fairness test.