This year, Christmas Day and Boxing Day fall on a Saturday and Sunday. As such, there is no question as to whether or not employees have the day off. In other years Christmas Day, Boxing Day and New Year’s Day are official public holidays. The Working Hours Act (ArbZG) states that employees do not have to take leave to have the day off. However, Section 10, Working Hours Act sets forth exceptions for fire departments, hospitals, restaurants, transport companies, energy providers and nursing services. Normal working hours apply for everyone employed in these sectors and employees also have to request leave for these days.
- What about Christmas Eve and New Year’s Eve?
Many employees are not aware that, according to the Federal Vacation Act, they are generally required to work on December 24 and 31 since these days are not official public holidays according to Section 9, Working Hours Act. This means that those who want to go shopping for last-minute presents or prepare for their gift exchange at their vacation location will have to book time off. The same applies to companies and industries, such as law firms or IT consultants, where business is usually quiet during these days. Unless employers choose to grant their employees time off; as a Christmas present so to speak.
- A half-day or full day’s vacation?
At some companies, Christmas Eve and New Year’s Eve are considered half workdays. Employees only have to sacrifice a single day of leave to take both days off. This particular case depends on the employment contract, the collective agreement or the company agreement with the employer. There is no legal entitlement as such.
As a consequence, without a corresponding agreement, the law requires employees to take six days of leave if they want to take time off from December 24 to January 2. The days from December 27 to 30 are ordinary working days. Therefore, if employees want time off, they have to request vacation time.
- Right to vacation?
Almost all employees would like time off during the Christmas season. Vacation requests often result in disputes about who has to staff the office during this time. There is no general entitlement to leave – not even if the leave year is about to expire. However, the employees’ leave requests always have to be considered when scheduling the time. Employers may also reject requests if urgent company issues conflict with these or vacation requests from other employees deserve priority from a socially-minded perspective.
This means that the specific circumstances of each particular case have to be weighed up and all interests have to be given adequate consideration: Are the employees single parents, long-distance commuters, family caregivers or did the employee work on Christmas Eve or New Year’s Eve last year? The employment contract or collective agreement may also contain relevant provisions to define the details of how the leave has to be distributed. In case of doubt, a court will decide whether the employee has to be granted the requested leave.
Conversely, employers may also close their company over the Christmas period and order company vacations. These days off are then deducted from the employees’ annual vacation allowance.
- Wage supplement for working on public holidays?
At least according to the law, employees who have to work are not entitled to a wage supplement. As with all other public holidays, the following rule applies: Employees only receive their usual salary unless their own employment contract or the collective agreement stipulates corresponding bonuses for work on Sundays and public holidays. Companies with a works council frequently have special arrangements with specific bonuses or supplements.
If an employer voluntarily pays a bonus or additional compensation for work on public holidays for several years, this may give rise to an entitlement on the grounds of this being “company practice” – even without an explicit agreement.
Vacation planning for the Christmas and New Year’s Eve period creates potential conflicts. The legal situation is clear. In the event of a dispute, the employee’s specific situation needs to be the decisive factor for HR managers. It is important to forgo unnecessary harshness in order to avoid spoiling the pre-Christmas atmosphere and not only in view of possible review by a judge.