2023-12-12 11:58:16
Alex Onciu
The Christmas holidays are approaching and receiving a gift from the company is always an illusion as well as financial support to alleviate the high expenses of these dates. Although it may seem like a simple custom, the law also regulates the traditional Christmas basket.
Knowing whether it is a detail of the employer or belongs to the workers by right or whether the company can stop delivering it in situations of economic crisis are, among other issues, the main problems of this tradition subject to law and court decisions.
Is it a gift or an acquired right?
The delivery of the Christmas basket is a “liberality of the employer, as long as it is not provided for in any agreement, whether individual or collective,” he assures. Montse Rodrigueznational labor director at BDO Abogados.
However, what in principle is a unilateral decision by the company, can become a more beneficial condition that “generates an acquired right for the worker” as long as a series of requirements are met, according to this lawyer.
What are the requirements that the courts require for it to be an acquired right?
The courts understand that the Christmas basket – as a voluntary act or corporate liberality – is an acquired right of workers when it meets a series of requirements.
First of all, it must be a regular, constant and repeated delivery over time. But the mere maintenance of the delivery of the basket in time does not have to conclude with its classification as an acquired right or more beneficial condition. Susana Rodriguezlawyer for Legálitas, assures that the Supreme Court considers “necessary for said persistent action to reveal the business will to introduce a benefit that increases the provisions of the law or the agreement.”
Secondly and the most important requirement: that said delivery be made with the full and conscious desire to benefit the workers. The express business willingness to grant a benefit to which it is not obliged by legal or conventional regulation or by contractual agreement with workers must be demonstrated. This second requirement, according to Montse Rodriguez“is the decisive factor so that the delivery of the Christmas basket is not classified as an act of mere liberality or an act of tolerance on the part of the worker.”
Once these requirements are met, the company will not be able to modify or eliminate this right unilaterally. In cases where the company decides to eliminate the Christmas basket, it must resort to the procedure established in the Workers’ Statute for the substantial modification of working conditions.
What happens if there is a takeover or merger of companies?
You must continue receiving the basket. In this case, the Supreme Court has established jurisprudence by denying that the merger of companies can alter the nature of this benefit for workers.
Lawyer Adrián Garzón Ximénez ensures that the jurisprudence of the High Court rejects that the most beneficial condition for receiving this liberality “can be eliminated unilaterally, without producing a new, more favorable collective agreement, modification of working conditions or a new novice agreement” between employee and employer.
Can workers claim the Christmas basket?
Yes. The worker may claim its delivery as long as it is recognized as a right by a standard, by collective agreement or by agreement with the employer. Also when it is demonstrated that it has its origin in a more beneficial condition or right acquired by the worker.
In these cases it will be necessary to go to court to file a claim for recognition of rights and amount. Susana Rodriguez recommends going to the judge when the right to receive the Christmas basket has “its origin in a conventional agreement or rule or because the worker can prove that it is a more beneficial condition and, therefore, enforceable.”
Can you request that its value be received as an extra in your salary?
The worker may refuse to receive the Christmas basket since it is the delivery of a gift from the company and not a legally or conventionally established remuneration.
However, since it is an act of liberality, the worker cannot demand that the employer, instead of giving him or her the basket, replace that gift with an amount of money equivalent to its value.
Should its value be updated with the CPI?
The courts reject the obligation to increase the value of the Christmas basket to match the increase in the CPI even though it is considered part of the employee’s salary. Montse Rodríguez recalls that a recent ruling by a social court in Gijón (access here to its content) has declared that “the value of the Christmas basket is not updated with the CPI since, although it is considered salary in kind for contribution or tax purposes, it does not mean that it must be subject to salary updates” .
Nor is it mandatory to update the basket because it is made up of food products that have been subject to high inflation in recent years, as this is an issue unrelated to the fact that it is a more beneficial condition. The National Court, in a ruling from 2023 (access here to its content), recognizes that the remuneration nature of the Christmas basket cannot be extrapolated to the rest of the “remunerations” contemplated in the collective agreement and its subsequent annual updates because it is a concept that neither comes from the conventional norm nor is included in it, given that it has its origin in the mere willingness to deliver on the part of the employer.
Can bosses have a higher value basket?
Just as there are differences in salaries, the fact that there are Christmas baskets of different values in an organization does not have to be, initially, contrary to the law or the principle of equality. Being faced with an act of liberality by the businessman, the value of this gift depends on his own decision.
However, as you remember Susana Rodriguezwhen it is a right recognized in a company agreement “the requirements may be established such as seniority, objectives, etc., which must be met by the worker in order for him or her to have the right to the basket.”
Do I have to pay taxes and contribute to Social Security?
The delivery of a Christmas basket to workers, whether it is a more beneficial condition or a mere generosity from the company, is considered, he assures. Montse Rodriguezas “remuneration in kind and, consequently, must be taxed and contribute as such” to both Social Security and the Treasury.
The General Directorate of Taxes reminds that when Christmas lots are delivered to the company, they will be considered as full income from work and, therefore, the corresponding income must be computed on account of the remuneration in kind. The company may write it down as fiscally deductible expenses for corporate tax purposes, “without it being necessary for them to appear in any collective agreement or pact, as long as the payment is justified and its adequacy to customs and practices is proven,” according to Adrian Garzon.
Can the company void this gift if it makes a loss?
The Supreme Court considers in a recent ruling (access here to its content) that in the event of an economic crisis of the company, the delivery of this Christmas gift may be denied due to the bad economic situation that the company has gone through in recent years and which made the delivery of the basket unfeasible.
In this way, the Social Chamber of the High Court revoked the ruling of the National Court that forced the company to deliver this gift by stating that, despite the agreement signed between unions and the company, poor financial results in a given year are sufficient to not enforce compliance.
In this case, the framework agreement between unions and the company establishes in the “Social Improvements” section that the entity would deliver a Christmas basket to employees “as long as economic conditions allow it.”
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