Given the rising number of Covid cases once again, many companies will be reluctant to celebrate Christmas the way they did in the days before Covid. Although labor law does not make any stipulations regarding size and scope, proximity and distance, it does provide clear answers to ten frequently asked questions:
1. Is a Christmas party mandatory?
Employers are free to decide every year whether or not they wish to hold a company Christmas party. However, there are exceptions such as a corresponding company agreement or company practice. For example, if parties held with the same scope in the last three years give employees the impression that such a party will also be held in the coming years. Given the experience with the Covid pandemic in the last two years, company practice cannot realistically be used as an argument for this year.
2. What about those who do not like Christmas?
Not every colleague is enthusiastic about company events. Whether virtual or real, a summer festival or Christmas party: there is no obligation to attend. Ultimately, the event usually takes place outside of working hours. If the event is held during working hours, employees do not have to attend but have to either work or take time off – unless the employer explicitly allows the employees to go home. But those employees who prefer to avoid the parties should consider the message that they are sending to their colleagues and superiors.
3. Overtime due to parties?
If the party starts after the end of work, employees cannot record this as overtime. In contrast, if the company celebrates during working hours, employees only have to make up for these working hours if the employer has explicitly ordered this. In this case, the works council must be involved.
4. Mandatory participation for everyone?
According to the labor law governing equal treatment, employers must treat all employees equally and may not disadvantage anyone. Therefore, all of the employees have to be invited, unless there is an objective reason to prohibit attendance (ArbG Cologne, decision from June 22, 2017 – 8 Ca 5233/16). For example, if a clinician is on call during the Christmas party or the production has to remain up and running. More precise regulations governing the participants can be set forth in a company agreement.
5. Those who do not go miss out on company gifts?
According to the Cologne Labor Court, absent employees are not entitled to gifts, even if the employee was on sick leave as a consequence of a work accident. Specifically, an employer gifted every employee at the Christmas party with an iPad mini worth €429 as an incentive to boost the attractiveness of its company celebrations (ArbG Cologne, decision from October 9, 2013 – 3 Ca 1819/13).
It is important to bear in mind that that the tax authorities regard Christmas presents as taxable income and social insurance contributions may also be incurred. Gifts can also become company practice. If the boss hands out gifts every year, this may give rise to a future entitlement.
6. Parties without boundaries?
Even if the celebration takes place outside of working hours, employees should continue to remember their good manners. Those who insult their colleagues or superiors, make sexual advances or become violent, risk receiving a warning or, in the worst case, immediate termination (e.g. LAG Hamm, decision from June 30, 2004 – 18 Sa 836/04).
7. The morning after
Work still starts at the usual time on the day after the party. Any exceptions must be arranged with employers in advance.
8. No posting photos without permission
Pictures of colleagues or superiors may not be published without their express consent – neither on social networks nor anywhere else. Otherwise, the affected parties are entitled to demand cessation as well as deletion. In addition, there is a risk of claims for damages and consequences under labor law.
9. Does the works council have a say?
The works council does not have any co-determination rights regarding whether or how Christmas parties take place. However, the company parties can address the associated issues via a voluntarily company agreement. Employers distribute gifts at their sole discretion. Nevertheless, the employee representatives have a say in the “how” in accordance with Section 87 (1) No. 10 Works Constitution Act.
10. Is an accident at the Christmas party insured?
The statutory accident insurance coverage also exists for accidents such as a torn ligament while dancing at the Christmas party as this is a company event. However, as soon as the boss officially ends the party or the majority of the colleagues leave, the insurance coverage also ends. The Bavarian Higher Administrative Court in Munich ruled that in the case of public officials and civil servants, a police officer injuring their teeth by biting a piece of lead shot in their venison stew at a Christmas party, resulting in medical treatment expenses, is regarded as a work accident.
During times of crises and great uncertainty, parties are often a chance to let off steam. They also help to strengthen the sense of community and team spirit and to deal with day-to-day stresses. As always, a look at labor law helps to ensure that the celebrations do not come to a sudden end, but remain happy memory for a long time to come.
