BarcelonaSome see it as an opportunity to socialize without work obligations; others see it as an inevitable pre-holiday trance. It is well known that the arrival of Christmas dinner arouses suspicion: am I obliged to go? Does it count as work activity? Can you post photos? All these simple questions have a legal answer, as they are matters that have in many cases ended up in court. And yes, they have also led to layoffs.
Can I be penalized for not going?
The lawyer of DCT Laboralistas Luis F. Pallarés explains that the refusal to attend has no legal consequences and that, therefore, it can never result in disciplinary or wage retaliation. However, if it is done during working hours, if a worker decides not to go there, he should make up the hours, adds the labor lawyer of the Ronda Collective Sergio Maldonado.
In fact, the Superior Court of Justice of Madrid (TSJM) endorsed a dismissal for breach of trust by an employee because, among other breaches, he did not attend a Christmas lunch during the working day and left his workplace at 14:00 when I was supposed to leave at 18:00. Roca Junyent’s labor lawyer Pere Vidal specifies that he would not have been fired if it were not for other faults.
I have an accident: would it be an accident at work?
If the meal has been organized by the company, any accident during the event or on the way will be considered work-related. In addition, the company has the responsibility to put in place the appropriate means so that inappropriate situations do not occur. This means that if a free bar is organized and then a worker has a traffic accident because he was drunk, he could contest the classification of the leave so that it changes from a common illness to an occupational accident. “This has retributive consequences, because in the second case he receives 100% of the salary,” adds Maldonado.
In the event of a fight, the scene is affected and whether there are companions or not also has legal implications
A judgment of the Superior Court of Justice of Catalonia (TSJC) in 2010 reasoned that an accident was not at work because it had occurred at a dinner among colleagues, without the participation of the company, and argued that it would be different if was in “the typical Christmas dinner”.
Fights, offenses and harassment
Last May, the Supreme Court (TS) ratified the dismissal of a worker who attacked a colleague in a restaurant at the end of the Christmas lunch. Here Maldonado points out that “the scene has an impact and that whether there are colleagues or not also has legal implications”.
In November 2020 the Superior Court of Justice of Madrid (TSJM) confirmed a judgment of a social court in Madrid that endorsed the dismissal of a warehouse manager for having made “comments of a sexual nature” in inappropriate terms and not consented to a warehouse girl during a Christmas cocktail party organized by a company. Pallarés recalls that cases of sexual harassment can occur in these contexts, especially towards female workers, and recommends recording whenever possible those that are verbal, such as flirting and questions about sexual life without consent.
What about the photos?
The publication of compromised photos of co-workers conflicts with the duty, contained in article 5 of the Workers’ Statute, to behave in good faith within the framework of labor relations. In April 2014, the Superior Court of Justice of Castilla y León declared the dismissal of a worker who posted videos of colleagues falling on Facebook justified. “You face two issues: uploading photos of drunk people can get you fired, and uploading photos without consent can get you a data protection fine,” adds Vidal.
“Uploading photos of drunk people can get you fired, and uploading photos without consent can get you a data protection fine,” warns a lawyer
Going to work drunk or hungover
Regarding the fact of going to work drunk on the occasion of the Christmas meal, article 54 of the Workers’ Statute states that habitual drunkenness or drug addiction can lead to dismissal if it has a negative impact on work. However, if an employee goes to work drunk, the same collective agreement is likely to already include a specific penalty, or even the possibility of termination. “If you have to work afterwards, you can’t be drunk; another thing is a hangover, which in principle doesn’t usually have consequences,” says Pallarés.
Can I claim gifts I didn’t receive?
Regarding any details of the employer, workers who have not attended the celebration do not have the right to demand financial compensation, which differs from the Christmas basket concept, which is an incorporated social benefit. “The repetition over time makes it an obligation that the employer cannot eliminate unilaterally”, according to Maldonado.