When is the holiday season between Christmas and New Year?
The Federal Leave Act (BUrlG), states that, during the holiday season, employees in Germany only have time off on public holidays, namely on December 25, 26 and January 1. Exceptions for working on these public holidays for specific occupational groups are governed in Section 10 of the Working Hours Act (ArbZG).
As a rule, employees are still required to work as usual between December 27 and December 31.
Can employers order company holidays?
Employees are generally free to decide when to take their annual leave and employers must comply with the employees’ requests where possible. Consequently, ordering mandatory company holidays between Christmas and New Year fundamentally conflicts with the provisions of the Federal Leave Act.
Nevertheless, companies may decide that the company will remain closed between Christmas and the New Year, but only in the event of an “urgent operational reason” (Section 7 (1) Federal Leave Act (BUrlG)). This is because the company holiday reduces the employees’ vacation entitlement.
When the conditions for company holidays are fulfilled, the consent of the individual employees is not required and employers can unilaterally order company holidays.
Co-determination by the works council
Even if employees do not have to agree, an existing works council does have a right of co-determination pursuant to Section 87 (1) No. 5 of the Works Constitution Act (BetrVG) (Federal Labor Court, decision dated May 9, 1984, 5 AZR 412/81) with regard to company holidays. Not only the actual company holiday itself is subject to co-determination. The works council may also have a say in the dates and duration if they are not essentially defined by the operational reason.
No holidays without “urgent operational reasons”
Employers cannot order company holidays between Christmas and the New Year without urgent operational reasons. The prevailing opinion is that the simple desire to order company holidays is not sufficient. However, if there is demonstrably nothing to do between Christmas and the New Year because customers are on vacation or suppliers are not working, for example, then employers can order company holidays.
An agreement with the works council can prove useful in this regard because “compulsory leave” without urgent operational reasons is only ever possible if it is regulated in the employment contracts or in a company agreement.
Announce company holidays at Christmas in time
In addition, it is also important to announce the “compulsory leave” between Christmas and the New Year in time. Employers are advised to announce the Christmas leave ideally at the beginning of the year but at least 6 months in advance.
If a company announces the vacation too late and employees no longer have any vacation entitlement, this is the employer’s problem. The employees then receive additional paid leave because unpaid leave violates the employees’ legal rights as does offsetting the leave against the following year.
What else do employers need to know?
If company holidays between Christmas and the New Year are an option, there are a few more points to consider:
- If an employee falls ill during company holidays, the normal rules apply: Employees who are unable to work while on vacation are credited the sick days as vacation days (Section 9 of the Federal Leave act (BUrlG)).
- If employees are not yet entitled to vacation at the time of the company holiday because they are in their probationary period, they still receive time off and retain their wage entitlement (Section 615 of the German Civil Code (BGB)).
What can we do for you?
Do you have any questions about company holiday over Christmas or in general? Do not hesitate to contact us!
Summary of the key facts:
- Employers may order company holidays if important operational reasons exist.
- Employers are advised to announce company holidays between Christmas and the New Year at the beginning of the year or by the middle of the year, at the latest.
- To simplify the issue, company holidays between Christmas and the New Year can be regulated in employment contracts or in a binding company agreement.
