Football is a simple game; 22 men chase a ball for 90 minutes and at the end, the Germans always win.
That’s how simple football is, according to Gary Lineker. At all events, things are often far from simple, if football mania and employment law coincide. For not every employee is keen to miss the fun of the matches; some will (want to) follow their team’s victories and defeats, and perhaps with (too much) exuberance. Football gives everyone plenty to talk about – even during „working“ hours. And quite a few will enjoy betting on the results. Euro 2016 is therefore a major sporting event that contains a lot of potential for conflict in employment law in a variety of situations. This applies in particular with regard to holiday, working hours and employee behaviour as well as its control.
Holiday and working hours
In principle, no special employment-law rules apply, even during the major sporting event Euro 2016. At all events this is the case unless special rules subject to a time limit are created, for example in works agreements on flexible working hours or on holiday exchange. If no special rules have been agreed, employer and employee both have to comply with the normal company and statutory provisions:
- Holiday must be granted by the employer on application, unless there are urgent operational concerns to the contrary or – and this is particularly likely to cause conflict when our team is playing – other employees also want to take their time off at the same time.
- The employer may refuse to grant a holiday, if other employees get their applications in first and granting further holiday would result in understaffing.
- The law does not give a right to taking holiday for individual match days, to say nothing of hours; on the contrary, holiday is meant to be granted in a contiguous block. If holiday is given piecemeal, this may mean that the employer does not correctly comply with the holiday entitlement and has to grant further holiday.
Even if the matches are played outside regular working hours, there is still a risk of conflict potential, if overtime has to be worked. If the employment contract or collective bargaining agreement contains no provisions insofar, the general rule is that the employer cannot use its instruction right to enforce overtime. If there are contractual arrangements – which is often the case – then overtime should be ordered, with an appropriate notice period and to a reasonable extent.
Use of media during working hours
If football matches and the transmission of football matches take place during working hours, the question arises as to the extent to which employees may follow the games at their workplace. In recent years the variety of technical possibilities has greatly increased. But despite the technical possibilities, without the employer’s approval, the employee is in breach of duty, at all events if work performance suffers as a result of following the games. In the individual case, it depends on the specific work situation, the medium and the applicable company rules:
- A radio broadcast may be allowed in the background, if work performance does not suffer and colleagues are not disturbed (Federal Labour Court, 14 January 1986, 1 ABR 75/83).
- Television, in contrast, requires greater concentration and therefore in many cases it will not be possible to reconcile it with the duty of correct work performance.
- If employees want to watch the matches using the company’s internet connection (live scores), this depends on whether private use is permitted.
- The use of private devices during working hours depends on the relevant company rules. However, in the view of Munich Labour Court, it is possible that it may only be forbidden subject to the works council’s co-determination.
Sanctions on taking holiday without consent and breaches of working hours rules?
If holiday is applied for but not granted and the employee leaves work without consent, this entitles the employer to impose employment-law sanctions – ranging as far as dismissal for serious cause without notice. The same applies where an employee gives advance warning of „being off sick“ (Federal Labour Court, 5 November 1992, 2 AZR 147/92). Nor is it permissible for employees to „exchange“ working hours with each other without consent. But when holiday has already been granted, it cannot – except in absolute emergencies – be revoked by the employer (Federal Labour Court, 14 March 2006, 9 AZR 11/05).
Watching a match in working hours will only be grounds for dismissal in exceptional cases. But this does not make watching football in working hours „socially appropriate“ – even though the Euro 2016 enjoys such a high social standing – (but for arguments in this direction see Labour Court Frankfurt am Main, 9 February 2011, 7 Ca 4868/10). In the case of simple breaches, therefore, employers will therefore initially prefer to issue a warning, if sanctions are or will have to be imposed.
If employees want to show their enthusiasm for the game by what they wear, then there are certainly areas where employers can be expected to tolerate this. But if the employer is entitled to expect a particular appearance based on the enterprise’s corporate identity, it may impose stricter rules.
Breaches of contractually agreed appearance rules may justify a formal warning. Whether the employer can use its instruction right to influence dress regulations is a question which depends on the individual case and is governed mainly by the type of work performed and the sector.
Consumption of alcohol
In German law, there is an absolute ban on alcohol only for particular occupational groups whose work is intrinsically incompatible with the consumption of alcohol. Apart from this, a strict zero alcohol limit imposed one-sidedly by the employer without reference to work performance or impairment of work performance is probably impermissible.
However, employees breach their contractual duties, if they arrive at their workplace after consuming alcohol in a state incapable of working, disturb the working atmosphere and/or make a negative impression on customers. In such cases, employers should consider releasing employees from their work duties and ensuring that the employees in question can find their way home safely. Since employers may not carry out alcohol checks on employees without the employee’s consent, obvious breaches of alcohol policy should be documented, with a view to possible sanctions.
The internal betting games popular in many companies may breach compliance guidelines and result in the directors being liable. For above a particular financial and organisational threshold, betting games may be problematic, in view of the requirements of the Industrial Code (Competitions without consent, section 33d of the Industrial Code) and the Criminal Code (Organising unlawful gaming, section 284 of the Criminal Code). In so far as employers allow their employees to use the company’s own infrastructure (e.g. email/intranet) for betting games, they should therefore make it absolutely clear that the competition is based solely on a private initiative of the employees.
Violations of compliance requirements
Another area which may be relevant to liability and employment law is that of gifts and accepting them, which is still fairly common, especially among field staff (e.g. hotly sought-after tickets for the final given to „VIP customers“). Depending on the sector, criminal offences may be committed both by the employee giving the gift and by the customer contact. But at all events such „gifts“ should be critically considered in advance by all those involved from the aspect of compliance. For often gifts of this nature are forbidden above a particular threshold (e.g. from EUR 40 up) either by individual contract or under internal compliance guidelines.
Collective agreements and works council co-determination
The principles set out above may be modified by provisions of collective bargaining or works agreements. Particular attention should be paid to works council co-determination rights. For holiday arrangements (for example laying down general holiday rules), there are co-determination rights in section 87 (1) no. 5 of the Works Constitution Act; for working time arrangements, section 87 (1) no. 2 of the Works Constitution Act applies, and for questions of internet use, dress at work and alcohol bans, section 87 (1) no. 1 of the Works Constitution Act applies. If the employer ignores existing co-determination rights, this may make individual measures ineffective leading to conciliation board and / or court proceedings.
Employers and employees should know and comply with their rights and duties during the Euro 2016. Companies should prepare proactively to deal with the typical situations (granting holiday, working the right hours, use of media and compliance violations). It is worth considering laying down firm rules of play – written or unwritten – for the employees. These rules may of course take the interests of football fans into account. In this way, nothing need interfere with a smooth and untroubled Euro 2016 – at work or after work.