Christmas is quiet in many companies. Elsewhere there are still urgent things to be done for the annual financial statements. So what if the supervisor suddenly calls on a holiday?
During the Christmas holidays, employees finally want to switch off and leave the professional challenges of the past year behind. The company cell phone remains silent, the laptop screen is black. Until suddenly the boss calls. But do employees have to be available to their employer at all on public holidays or vacation?
“No,” says Nathalie Oberthür, a specialist lawyer for labor law in Cologne. In principle, employees do not have to be available when they are on vacation. Holidays are meant for relaxation. “On public holidays, however, on-call duty can be agreed according to general principles, provided that the legal working time requirements for working on public holidays are observed,” restricts the specialist lawyer.
Anyone who is not on call or is on vacation anyway does not have to fear any consequences if he or she ignores possible contacts from the employer during this time. According to Oberthür, this applies to all days off. “Employees are not obliged to be available for the employer in their free time.”
According to the employment law expert, there should also be no exception rules in the employment contract, which should, for example, regulate hourly or constant availability on public holidays. According to a ruling by the Federal Labor Court in 2000 (Az.: 9 AZR 405/99), such agreements in employment contracts are regularly inadmissible – at least if they apply to the 24 working days to which each employee is entitled as the statutory minimum holiday.
Only in exceptional situations can it be legitimate for the employer to try to contact employees who are on vacation or public holidays. For example, “if the employer wants to postpone the start of work that has been agreed for the next day,” says Oberthür. Here, too, there is no obligation for the employee to be available.
About the person: Nathalie Oberthür is a specialist lawyer for labor law and chairwoman of the labor law committee of the German Bar Association (DAV).
(This article was first published on Monday, December 12, 2022.)
