Employment Law08.05.2024 Newsletter

Falling foul of labour law? – recommended action regarding the UEFA Euro 2024

1. Use of media at work

For all those employees who were not lucky enough to get their hands on one of the coveted tickets for the national team matches, the first question that arises is whether they may still watch matches during work.

Whilst employees are generally allowed to listen to the radio during work, provided that they carry out their respective work properly and do not disturb other employees (see German Fed-eral Labour Court [Bundesarbeitsgericht, BAG], decision of 14 January 1986 - 1 ABR 75/83), following a match in sound and vision requires increased attention, meaning that the proper performance of work can generally no longer be guaranteed. However, according to case law, a dismissal in such a case - at least in case of a first offence - is disproportionate, as watching the European Championships match is (still) classified as "socially appropriate" (in this direc-tion at least Labour Court [Arbeitsgericht, ArbG] of Frankfurt am Main, judgement of 9 February 2011 - 7 Ca 4868/10). In the event of a corresponding offence, only a "yellow card" in the form of a warning therefore initially comes into consideration.

Another way to keep up to date with the current course of a match is to use so-called live tickers on the internet, whereby the permissibility under labour law of cheering the match along live initially depends on whether the company permits use of its internet for private pur-poses or only for work-related purposes. If employees use the internet privately to follow a match despite the absence of an agreement, this may constitute a breach of their contractual obligations and therefore also be taken as a basis for a warning or even dismissal. However, even in cases where private use has been authorised, a live ticker may not be used excessively. If an employee follows a live ticker throughout an entire match, this is regularly regarded as excessive use, which can result in consequences under labour law, including dismissal (without notice), as this constitutes a case of withholding work performance or working time fraud. Ultimately, however - as is often the case on the pitch – this has to be considered on a case-by-case basis.

2. Holiday and leave of absence

Employees are generally free to apply for holiday during the UEFA Euro 2024 so that they can fully indulge in their football fever if the company grants them leave.

However, if (too) many employees apply for holiday on individual (match) days - possibly only at short notice - in order to support the national team, the company is entitled to refuse the requested leave under certain circumstances - namely if there are urgent operational rea-sons to the contrary. This is the case, for example, if there is a risk of understaffing in the company due to the large number of holiday requests.

However, employees should not subsequently come up with the idea of forcing the approval of their leave through unfair means. The announcement of an "illness" in the event of the refusal of their application for leave, for example, may even constitute grounds for dismissal (BAG, judgement of 12 March 2009 - 2 AZR 251/07). In addition, there may be consequences under labour law if employees report themselves unfit for work with a feigned illness (LAG Hesse, judgement of 1 April 2009 - 6 Sa 1593/08).

(Also) during the UEFA Euro 2024, companies and employees should therefore endeavour to find mutually agreeable solutions that enable them to be "in the thick of things and not just on the sidelines", both at the UEFA Euro 2024 and at work. Ultimately, a clear principle of fair play applies in labour law just as it does on the pitch.

3. Exceptions to the Working Hours Act

In the run-up to the European Championships, North Rhine-Westphalia was the first federal state to issue exemptions to the German Working Hours Act [Arbeitszeitgesetz, ArbZG] for the duration of the UEFA Euro 2024. It is anticipated that the occupational health and safety authorities in other federal states will also issue similar regulations in the near future.

The special regulation applies to all persons whose work involves the preparation, participa-tion, realisation or follow-up of the UEFA Euro 2024. This includes, in particular, employees of the official association and licence partners, representatives of associations, in particular UEFA, including referees, players and assistants, paid staff of the participating teams, facility management staff, technical media staff, film and television representatives, as well as securi-ty staff.

In terms of content, the exemption stipulates that the maximum daily working time can be increased to a maximum of 12 hours (if necessary also on Sundays and public holidays). Ap-propriate authorisation from the supervisory authority is not required.

However, it should be noted that the weekly working time, including work on Sundays, may not exceed an average of 48 hours within a period of 6 calendar months or 24 weeks. There-fore, after the end of the UEFA Euro 2024, personnel planning and deployment must ensure that the average working time is reduced to the statutory maximum of 48 hours within the aforementioned period, which can be achieved, for example, by granting appropriate compen-satory days.

In addition, the following restrictions and ancillary provisions of the exemption under federal state law must be observed:

  • The maximum weekly working time may not exceed 60 hours.
  • Furthermore, according to Section 3 (2) No. 1 of the German Occupational Health and Safety Act [Arbeitsschutzgesetz, ArbSchG], the start and end of the actual working hours as well as the scheduling and duration of rest breaks must be recorded for all employees concerned.
  • In addition, a substitute rest day must be granted for work performed on Sundays and public holidays within the statutory period of 14 days (Section 11 (3) ArbZG).
  • Moreover, at least 15 Sundays per year must remain work-free (Section 11 (1) ArbZG).
  • Finally, all activities relating to the preparation, participation, realisation and follow-up of the UEFA Euro 2024 must be identified, evaluated and documented as part of the risk as-sessment in accordance with Sections 5 and 6 ArbSchG.

4. Responsible use of stimulants at work

Irrespective of the question of whether employees are allowed to watch the European Cham-pionship matches during their working hours, a clear agreement is also required regarding the "accompanying programme". The general football euphoria is such that it is quite common to drink a toast to the odd goal or two (or alternatively to "drown one’s sorrows"). But what reg-ulations apply when employees consume alcohol during working hours?

Even if possible national team victories should lead to temptation: also during the UEFA Euro 2024 it is the responsibility of employees to observe the relevant company regulations and - should alcohol be permitted – to observe their personal limits when consuming alcohol. Ac-cordingly, employees are obliged not to jeopardise their work performance and safety at work through excessive alcohol consumption.

Companies may consider exercising their right to issue instructions in order to impose a ban on alcohol. However, they should note that such a measure first has to be coordinated with any existing works council, which has a mandatory right of co-determination in this respect, and secondly, any checks to ensure compliance with the alcohol ban may conflict with the personal rights of employees, which are protected by fundamental rights. The following therefore also applies here: alcohol in moderation, checks likewise.

5. Wearing football kit to work?

The permissibility of wearing fan merchandise during working hours must be assessed on the basis of the specific professional activity and the company's guidelines. In various occupation-al fields, the wearing of special protective clothing is regulated by laws or accident prevention regulations of the employers' liability insurance association. Although employees may be tempted to replace this protective clothing with a fan outfit, such "shirt-swapping" is generally not permitted. Here, it is the responsibility of the company to ensure that the prescribed pro-tective clothing is actually worn. If employees refuse to do so, this can have consequences under labour law (e.g. Regional Labour Court [Landesarbeitsgericht, LAG] of Saxony, judge-ment of 10 January 2017 - 5 Sa 85/16). Also in cases where employees have contact with cus-tomers, wearing fan outfits may violate the company's guidelines - employees are advised to consult with the company in this regard.

6. Betting games

In principle, companies are permitted to organise betting games within the business. However, care must be taken to ensure that the organisers do not receive any share of the profits and that the betting game is exclusively for the business's own employees. For reasons of youth protection, companies must also ensure that minors are not entitled to participate.

When planning and organising a betting game, existing co-determination rights of the works council, if any, must also be taken into consideration. These are particularly relevant with re-gard to data protection issues - especially when it comes to the processing of personal data.

It is also possible - and increasingly popular due to the wide range of offers on the internet - for employees to organise a betting game themselves in which the company is not involved. In this case, it must be ensured that the betting game is regarded as a leisure activity and there-fore does not take place during working hours. Otherwise, employees risk a warning. Howev-er, betting games may be conducted during break times or after work.

7. Conclusion

The UEFA Euro 2024 not only causes tension in a sporting context, it also raises numerous labour law issues. Like on the pitch, it is therefore worth taking a regular look at the relevant "match rules" when the office turns into a fan mile between betting games and live tickers. And just like on the "sacred turf", here too a clever balancing act is required if employees are to be able to enjoy the tournament without falling foul of labour law. Then, ultimately (hope-fully), not only will the result on the pitch will be the right one, but the working environment will also remain a harmonious one.

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Lisa Striegler

Lisa Striegler

AssociateAttorney

Bockenheimer Landstraße 2-4
60306 Frankfurt am Main
T +49 69 707968 124

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Jörn Kuhn

Jörn Kuhn

PartnerAttorneySpecialized Attorney for Employment Law

Konrad-Adenauer-Ufer 23
50668 Cologne
T +49 69 707968 140
M +49 173 6499 049

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