A'Tis the season to be jolly… Coronavirus: The virtual work Christmas party

Without the coronavirus pandemic, this would be the time for company Christmas celebrations. How nice it used to be... hot mulled wine as a welcome drink, festively decorated premises, a good atmosphere among the staff, a few words of thanks from the boss, the odd Christmas carol sung by the boss themselves, enjoying a delicious meal with wine at the employer's expense, toasting a successful year with co-workers at the bar with gin and tonic or Cuba Libre, dancing wildly to the music of the DJ and so on.

Dear Readers.

In 2020 parties are being improvised, for example with Christmas parties in smallest groups or outdoor Christmas parties. Often, Christmas parties in 2020 are being organised virtually. Everyone is sitting alone in the office or at home in front of the screen, while the work Christmas party is held via video conference. No comparison to "normal" Christmas parties, and yet labour law rules also apply to improvised coronavirus Christmas parties.

1. Obligation for the employee to participate in the improvised company coronavirus Christmas party

Also virtual Christmas parties during the coronavirus pandemic often take place in the evenings after work and thus outside working hours. This means that participation in the work Christmas party is not mandatory. An obligation to participate cannot be stipulated in the agreement, nor does such an obligation to participate result from secondary obligations under the employment agreement. This applies even if the Christmas party takes place in whole or in part during normal working hours. An employee who does not participate in the Christmas party does not commit a breach of his or her duty to work. However, employees who do not take part in the Christmas party are obliged to perform the contractually owed work ‑ insofar as the Christmas party takes place (partially) during working hours ‑ with their usual work.

2. (Mis)conduct at the Christmas party

At virtual Christmas parties, people (probably) drink less and dance less. A virtual company Christmas party is still a company event. Although it is voluntary, employees attending the Christmas party are still bound by secondary contractual obligations. Violations may be sanctioned under labour law.

• Gross insulting of the superior by using abusive language ("stupid sod", "asshole", "wanker") and insulting gestures (outstretched middle finger) justifies dismissal for conduct-related (ordinary and possibly extraordinary) reasons. This even applies if abusive language is used outside working hours and away from the premises at the Christmas party in front of colleagues, even if the employee was under the influence of alcohol (Higher Labour Court of Hamm, judgement of 30 June 2004 - 18 Sa 836/04). This must also apply accordingly if the Christmas party takes place as a video conference.
• Violence among employees at the Christmas party can also justify an extraordinary dismissal. On 19 August 2009 (4 BV 13/08), the Osnabrück Labour Court had to decide on the approval of the extraordinary dismissal of a works council member at a Christmas party. The works council member grabbed the microphone at 11 p.m. at the Christmas party with about 200 employees and sang songs. Work colleagues shouted that he should stop, as it sounded terrible. The works council member then left the stage and punched one of his colleagues in the face. Later, the works council member claimed that he had been completely drunk. The Osnabrück Labour Court confirmed the extraordinary dismissal of the works council member. Violence among employees can justify termination without notice, even without a prior warning. It could not be clarified whether the works council member had in fact been completely drunk, in any case he did not show characteristic signs of alcohol abuse. (Virtual) violence is probably hard to imagine at Christmas parties in 2020.
• It is not just a cliché that people "flirt" at Christmas parties. Where boundaries are crossed, it may be a case of sexual harassment, and the harassing employee must also expect extraordinary dismissal. Sexual harassment, i.e. unwelcome conduct of a sexual nature, is, at a Christmas party, for example if an employee is asked whether she is available for an "extramarital affair" or a "threesome" (Higher Regional Court of Frankfurt), or a pat on the bottom (Higher Labour Court of Cologne from 07 July 2005 - 7 Sa 508/04). A "physical" sexual harassment is not possible at virtual Christmas parties 2020, but sexual harassment is conceivable by words, through gestures or with the chat function.

3. Christmas party and accident insurance

Even if the Christmas party is not a compulsory event, it is still a company event and as such the usual insurance cover is provided by the statutory accident insurance. This also applies to a virtual Christmas party, even for staff working from home.

Covered are all activities that are compatible during the event with regard to the community purpose (BSG of 05 July 2016 - B 2 U 19/14 R).  The protective purpose includes all activities related to the Christmas party, e.g. eating, drinking, dancing, preparations, etc. The employer determines the duration of the Christmas party and thus also the scope of the insurance cover. Once the employer officially ends the party, the insurance cover also ends (Social Court of Frankfurt am Main dated 24 January 2006 - S 10 U 2623/03). Still, the insurance cover includes the journey home, even after the Christmas party has ended, provided that the employee goes straight home and does not make any detours and that the accident is not essentially due to other reasons (drugs, absolute unfitness to drive in case of a motor vehicle accident).

4. Employees' entitlement to Christmas presents

The restrictions imposed by the coronavirus pandemic affect Christmas celebrations but not Christmas presents. Can there even be an "entitlement" to Christmas presents? In its judgement of 26 March 2014 (11 Sa 845/13), the Higher Labour Court of Cologne had to decide on an employee's claim for the granting of a Christmas gift, legally on the transfer of ownership of an iPad mini. The employer granted an iPad mini with a value of approximately EUR 400.00 each as a Christmas gift only to those employees who attended the company Christmas party. The employer intended to achieve that more of employees attended the party Of the approximately 100 employees, 75 employees attended the Christmas party and accordingly received an iPad mini. At the time of the Christmas party, the employee bringing action was unfit for work and felt that he was being treated unequally. The Higher Labour Court of Cologne did not find any unequal treatment. The employer had wanted to use the surprise gift to reward voluntary commitment outside working hours. This was not remuneration for work performed. Rather, the employer was entitled to treat employees differently, as the employer was pursuing the goal of making company parties more attractive and motivating employees to participate.

It is to be hoped that 2021 will end without the coronavirus but with Christmas parties.

Best wishes from the Labour & Employment Law Practice Group, and stay well!

Yours Dr Erik Schmid