1. What Is BYOD?
BYOD means that an employee uses his or her own devices for work. Nevertheless, the devices remain the property of the employee.
The advantage of the model lies in the fact that the employee is flexible and can work from anywhere. It also increases availability and productivity. In addition, when employees use their most familiar devices, problems that might otherwise occur due to the use of an OS unknown to the employee are minimised. It may also save the employer money (though there are a number of things to consider, more on this below).
However, “BYOD” also carries perils with it. If organisational and technical measures are not adequately implemented, private and business data get mixed up. For instance, this means that third parties who use or share a personal device of an employee can have access to business data, which is generally not permitted. Another issue is data security. Malware that infiltrates through private or business use can affect all data.
2. The Most Important Rules to Follow
BYOD cannot be introduced unless both the employee and the employer have agreed to it. Thus, the employer is unable to oblige the employee to BYOD and the employee has just as little of a right to it. For these reasons, the employer should always provide the necessary work equipment and integrate BYOD as a supplement.
Consent can also be implied. This leads to the possibility that an employer who tolerates the use of own devices by the employee has implicitly agreed and the employee can make financial claims (see below).
In the absence of a stipulation in the employment contract or in regulations (employee regulations, directives, etc.), the applicable legal provisions are those of the Swiss Code of Obligations (CO), in particular Art. 327 and 327a CO. According to Art. 327 para. 2 CO, the employee must be adequately compensated for the use of his own equipment. Art. 327a para. 1 CO requires the employer to also repay the necessary expenses and expenditures for maintenance. It is therefore advisable to regulate the coverage of costs in advance.
Art. 327 para. 2 CO is optional. Hence, the employer can choose whether to compensate the use of the devices in full, in part or not at all.
This choice is not available to him/her in relation to expenses and expenditures for maintenance under Art. 327a para. 1 CO. They must be reimbursed in any case, though there is the possibility of agreeing that they are reimbursed as a lump sum at specified intervals (weekly, monthly, etc.). The only condition is that the expenses are in fact covered and that the agreement has been made in writing. Ideally, the costs would be compensated at the same time as the salary, and this would be laid down in a clause. Depending on the situation, it makes sense to calculate the costs on a pro rata basis. This is especially important if costs are both private and business-related.
The rules on the processing of personal data according to Art. 328b CO as well as the Data Protection Act (DSG) also and in particular apply to BYOD.
Holiday and Working Hours
With BYOD, employees are reachable anywhere and at any time. This however entails the possibility of holidays and working hours in accordance with the Swiss Labour Code not being respected. For the employer, the risk emerges that the employee may reclaim the holidays. It is recommended in this regard to at the very least make employees aware of this.
Termination of the Employment Contract
It is advantageous to include the consequences of termination in the employment contract. In the case of BYOD, the removal of all business data from private devices is crucial.
3. Implementation in the Company
The explanations above show that there are a few aspects to be taken into account in order to avoid undesirable consequences for a company. It is for that reason advised to plan the implementation of BYOD in advance, to record it in writing and to make it accessible to the employees in the form of regulations and/or a guideline.