It’s that time of the year again: gingerbread, Advent calendars, Christmas markets and your colleagues humming “Last Christmas”. In this episode, Magdalena Ziembicka and Dorothea Arlt talk about employment law aspects related to Christmas: from Christmas pay, decorations in the workplace and office parties, to options for extending days-off during this festive period.
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Christmas pay, similar to holiday pay, is not a statutory entitlement in Austria. Most employees are entitled to Christmas pay based on an applicable collective bargaining agreement. In most cases, the pay is due with the November salary, but some collective bargaining agreements provide for different arrangements.
Special payments such as Christmas pay are subject to favourable tax treatment, thus employees receive a considerably higher net amount than their regular remuneration.
Decorations in the Workplace
When planning office decorations, employers must comply with employee safety measures and take reasonable precautions to ensure that decorations do not pose a hazard. Otherwise, there is a risk of accidents at work and administrative penalties under the Employee Protection Act.
One of the most obvious precautions is fire safety. Employers must implement measures for fire prevention, firefighting and evacuation of employees in case of a fire.
Another consideration is that any instructions by an employer should not be worded in a way that may be interpreted as indirect religious discrimination.
Office Christmas Parties: invitations and attendance
Employers must invite all their employees. Even if the Christmas party takes place outside of regular working time, the employer is still bound by the duty of care and equal treatment of employees. As such, it is hard to imagine an objective reason for not inviting someone, even if that person does not celebrate Christmas. This also applies to temporary workers.
In terms of the obligation of employees to attend such a gathering, the answer will depend on when it is held. If it is a short get-together during working hours, this could be considered an instruction from the employer, which makes attendance mandatory. However, in our view, this is not the case for evening parties outside of working hours, where attendance is not compulsory and does not count as working time.
Office Christmas Parties: safety and accidents
An accident at an office Christmas party can be considered as a work accident, even if the party takes place outside of working hours. If the employer causes the accident at work or the occupational illness wilfully or through gross negligence, they must reimburse the Social Security Administration for the benefits paid out by it.
If an employee is unable to work following their accident, they are typically entitled to continued remuneration. However, if an employee caused their accident willfully or through gross negligence, they lose their entitlement to continued remuneration. The burden of proof that the employee has intentionally, or through gross negligence, caused an absence from work lies with the employer.
Office Christmas Parties: misconduct
The Christmas party is closely related to the employment relationship and thus, instances of misconduct (assault, defamation, sexual harassment etc.) at such an event can lead to consequences under labour law, including dismissal. The Supreme Court has already dealt with several cases in which massive misconduct has occurred outside of working hours, including at Christmas parties. According to the Supreme Court, an off-duty offence must have at least an indirect effect on the employment relationship.
If instances of sexual harassment occur at Christmas parties, the employer may be held liable not only if the employer themselves harass the employee, but also if an employee is harassed by other colleagues or customers and the employer failed to take appropriate remedial action. Remedial action against a harassing employee can range from warnings and garden leave to ordinary or immediate dismissal.
Presents from Employers
Usually, gifts from employers are made on a voluntary basis. However, a repeated unconditional granting of similar gifts can result in what employment law defines as “company practice”. This can lead to the employee acquiring a right of legal claim.
To avoid a situation where gifts become company practice in legal terms, employers can explicitly declare the reservation of the non-binding nature of such gifts.
Who would not want to enjoy the holiday spirit a bit longer? Unfortunately, an employee may only take holiday leave if this has been agreed with the employer. As with any annual leave, the timing must be agreed between the employer and the employee and must take into account both the company’s requirements and the employee’s opportunities to take a break. This means, the employer can refuse time-off, in order to ensure the company has sufficient human resources on those particular days.
Having said that, employees are entitled to one day of holiday per year “on demand”, for which no consent of the employer is required. Such request must be submitted to the employer at least three months in advance.