Workplace Q&A
1 What actions may an employer take if:
a) an employee is absent from work without authorisation because they were watching the World Cup?
The employer may issue a warning to the employee for unexcused absence. In addition, wages for that day may be withheld. In this case, termination would only be possible if the employee had previously exhibited similar behaviour and had been warned, if the employee had only been employed by the employer for a very short time, or if the employee had announced their absence and had been warned by the employer that this behavior could result in termination.
b) an employee submits a suspicious medical certificate or other rationale to justify a work absence where the employer suspects the employee is watching or attending the World Cup?
The employer may initially withhold continued payment of wages for this day and request the employee to submit an additional medical certificate confirming their illness. Employers usually only require a medical certificate from the third day onwards, but may also request one from the first day. If the suspicion is confirmed, a warning and, if necessary, even dismissal of the employee is possible. The same applies to other “excuses,” whereby the employer must prove that the employee was watching or attending the World Cup.
c) the employer suspects an employee(s) of consuming alcohol at the workplace or within a proximate time before starting work; can an employer administer breathalysers in the workplace?
No, employers are not permitted to conduct alcohol tests without the employee's consent. Refusal is possible without incurring sanctions. If there is a works council, its consent or co-determination is required in accordance with Section 87(1) No. 1 of the Works Constitution Act (BetrVG).
d) the employer wishes to rearrange the work hours for all employees to accommodate the viewing of particular matches, e.g. their country’s team?
This is possible with the consent of the employees. The reorganization must not violate the Working Hours Act (e.g. max. 8 hours/day, breaks) and must be justified on operational grounds – private interests such as World Cup matches do not justify a unilateral burden. However, if an employee does not want this, the employer must grant them the usual working hours.
e) the employer suspects that employees are using company IT systems during work hours to watch matches (including the use of illegal streaming services) and/or to participate in gambling related to the World Cup (including illegal gambling)?
In general, company resources may only be used for business purposes. An exception applies if the employer has permitted (limited) private use for legal websites. The employer should clarify this once again. In any case, the World Cup may not be watched on private or company devices during working hours. If this is the case, the employee may receive a warning, have their pay withheld, and in certain cases be dismissed.
f) an employee potentially misconducts themselves outside of working time either at a staff-organised World Cup event or an unorganised event?
The employer cannot sanction private misconduct that is not related to work. A connection to work can only exist if the employer organizes the event or if disputes arise between employees and these continue during working hours.
2 If a country declares a national holiday on the day the country’s team plays (or later for a celebration), are employees who work on those days entitled to overtime pay or time off in lieu etc?
That won't happen in Germany. However, regardless of this, working on public holidays requires a special permit, except in a few cases regulated by law.
3 Is it lawful for a company’s employees to conduct office pools at the workplace? Would there be any restrictions on the amount of money to enter or the amount of compensation awarded?
Yes, it is generally lawful for a company's employees to conduct office pools (like football “Tippspiele ” ) at the workplace in Germany, as they qualify as private bets in a closed group of colleagues. Betting games are only prohibited at the workplace during working hours. In certain cases, employees may be liable to prosecution for illegal gambling.
4 May employers prohibit public displays of rival country team colours in the workplace?
An employer cannot generally prohibit the public display of the colours of a rival country's national team at the workplace, as this interferes with the personal rights and freedom of expression of employees (Art. 2 (1), Art. 5 (1) GG). Although the employer's right to issue instructions under Section 106 of the Trade Regulation Act (GewO) allows for guidelines on appearance, these must be justified by legitimate operational interests and be proportionate. A ban can only be permissible if displaying the national colors is specifically likely to seriously and severely jeopardize industrial peace, for example if it leads to significant conflicts, disruptions or discrimination in the workplace.
5 Could an employer be subject to a discrimination claim if accommodations are given in respect of watching games played by one gender but not the other, or for watching certain nations’ games (e.g. home nation) but not others?
6 Any other advice you would give to employers in your jurisdiction ahead of the World Cup?
Employers should communicate transparently what is permitted in the workplace, during working hours, and during breaks in order to avoid problems in advance. In general, the following applies: Working hours and television: Watching television at work during working hours is only permitted with the employer's permission. Watching television without permission can result in at least a warning. During breaks, the game can be watched on personal devices. The general ban on alcohol in the workplace and on company premises must be observed, unless the employer grants special permission. Time off work: There is no general legal entitlement to time off or leaving early for national team games. Extended working hours: Employers are not obliged to flexibly adjust working hours to match game times.