When the employment relationship ends, the question arises of how to return this mobile number to the employee, especially in highly competitive industries. The employer then tries to keep the departing employee's mobile number to reduce the risk that the employee will continue to be contacted afterwards by customers, for example.
As our dealings with social media have evolved, it is now believed that it makes less and less sense to give this mobile number back to the employer, since the company's clients may continue to contact the employee through LinkedIn and other professional networks anyway. On the other hand, it is noted that the importance of the mobile number for private use has increased, and many feel that this should take precedence over the perceived risk of competitive disadvantage.
Even if our courts were already tempted to rule in this direction, there will soon be no more ambiguity on this issue due to the change in the law.
Draft bill of 1 December 2023
By draft bill of 1 December 2023, a new Article 21/1 will be inserted in the Law of 3 July 1978 on Employment Contracts and will provide that if, at the beginning or during the term of the employment agreement, the employee has a mobile number that he possessed before the conclusion of the employment agreement, and has transferred it to the employer, the employee will have the right to request the return of the right of use of this former private, mobile number at the end of the agreement.
For this purpose, the employee must request the return of the number in writing, dated within one month from the date of termination of the employment agreement.
If these conditions are met, the employer will not be able to refuse the return of the number.
This article will enter into force on 1 January 2024.
The entry into force of this article will certainly mean that clauses in employment agreements that provide for the return of the personal mobile number before the end of the employment relationship will be considered illegal.
What if the employer gave the employee a new mobile number when they began working?
When the employer concludes subscriptions for several mobile numbers and makes them available to its employees within the framework of the employment agreement, the reasoning is different in the sense that the number is then considered an instrument of employment within the meaning of Article 17.5° of the Law on Employment Contracts.
At the end of the employment relationship, the employee must return the right to use the mobile number so that this mobile number requested by the employer can subsequently be assigned to another employee. In such a situation, it is assumed that the ex-employee has been able to keep his private number in addition to the mobile number he used under his employment agreement and thus he has not lost his personal number.
The developments published on 12 January 2023 confirm that this article is not intended to change this situation.
Thus, in principle, employers can continue to demand the return of mobile numbers that they have made available to employees themselves and can include contractual provisions to that effect.
Do not hesitate to reach out to our Employment & Benefits team, we are happy to assist you!