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.

Whether it is an item of the employer or whether it rightfully belongs to the workers or whether the company can stop delivering it in the event of an economic crisis are, among other questions, the main issues 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 “generosity from 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 is in principle a unilateral decision by the company, can become a more advantageous condition which “generates an acquired right for the worker” provided that a series of conditions are met, according to this lawyer.

What conditions do the courts require for this to be an acquired right?

The courts understand that the Christmas basket – as a voluntary act or corporate generosity – 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 simply maintaining the delivery of the basket on time should not necessarily result in its classification as an acquired right or in a more advantageous condition. Susana Rodriguezlawyer of Legálitas, assures that the Supreme Court considers “necessary for said persistent action to reveal the commercial desire to introduce an advantage that increases the provisions of the law or agreement.”

Secondly, and this is the most important condition: that this delivery is carried out with the full and conscious desire to benefit the workers. The express desire of the company to grant an advantage to which it is not bound by legal or conventional regulations or by a contractual agreement with the 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 qualified as an act of simple generosity or an act of tolerance on the part of the worker.”

Once these conditions are met, the company will not be able to modify or remove 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 in the event of a company buyout or merger?

You must continue to receive the basket. In this case, the Supreme Court established jurisprudence by denying that the merger of companies could modify the nature of this advantage for workers.

The lawyer Adrian Garzon Ximénez ensures that the jurisprudence of the High Court rejects that the most advantageous condition for benefiting from this liberality “can be removed unilaterally, without producing a new, more favorable collective agreement, a modification of working conditions or a new novice agreement” between employee and employer.

Can workers claim the Christmas hamper?

Yes, the worker can request delivery provided that it is recognized as a right by a standard, by a collective agreement or by an agreement with the employer. Also when it is demonstrated that it originates from a more advantageous condition or right acquired by the worker.

In these cases it will be necessary to go to court to file a request for recognition of rights and amount. Susana Rodriguez recommends going to court when the right to receive the Christmas basket has “its origin in an agreement or a conventional rule or because the worker can prove that it is a more advantageous and therefore enforceable condition” .

Can you request that its value be received in addition to your salary?

The worker can refuse to receive the Christmas basket since it involves the delivery of a company gift and not legally or conventionally established remuneration.

However, since it is an act of generosity, the worker cannot demand that the employer, instead of giving him the basket, replace this gift with a sum of money equivalent to its value.

Should its value be updated with the CPI?

Courts reject the requirement 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 judgment of the Social Court of Gijón (access here to its content) stated that “the value of the Christmas basket is not updated with the CPI since, although it is considered a salary in kind for contributory or tax purposes, this does not mean that “he must be subject to salary updates”.

It is also not obligatory to update the basket because it is made up of food products that have been subject to high inflation in recent years, since this is an issue unrelated to the fact that it is This is a more advantageous condition. The National Court, in a 2023 judgment (access here to its content), recognizes that the remunerative nature of the Christmas basket cannot be extrapolated to the rest of the “remuneration” envisaged in the collective agreement and its subsequent annual updates because it is a concept which does not come either from the conventional norm nor is it included in it, given that it finds its origin in the simple desire to act 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 hampers of different values ​​in an organization does not necessarily have to be against the law or the principle of equality in the first place. Faced with an act of generosity on the part of the businessman, the value of this gift depends on his own decision.

However, as you remember Susana Rodriguezwhen it comes to a right recognized in a company agreement, “conditions can be set such as seniority, objectives, etc., which must be fulfilled by the worker for him to be entitled to the basket”.

Do I have to pay taxes and contribute to Social Security?

Providing a Christmas basket to workers, whether it is a more advantageous condition or simple generosity from the company, is being considered, he assures. Montse Rodriguezas “remuneration in kind and, therefore, must be taxed and contributed as such” to both Social Security and the Treasury.

The General Directorate of Taxes reminds that when the Christmas packages are delivered to the company, they will be considered as full income from work and, therefore, the corresponding income must be calculated taking into account the remuneration in kind. The company can record them as tax-deductible expenses for corporate tax, “without it being necessary for them to appear in any collective agreement or pact, as long as the payment is justified and its suitability for use and uses is proven”, according to Adrien Garzon.

Can the company cancel this gift if it makes a loss?

The Supreme Court considers in a recent judgment (access here to its content) that in the event of an economic crisis in the company, the delivery of this Christmas gift could be refused due to the poor economic situation that the company has gone through in recent years and which made the delivery of the basket unachievable.

In this way, the Social Chamber of the Supreme Court revoked the decision of the National Court which obliged the company to offer this gift stating that, despite the agreement signed between the unions and the company, poor financial results during A given year is enough to not enforce respect.

In this case, the framework agreement between the unions and the company provides in the “Social Improvements” section that the entity will deliver a Christmas basket to employees “as long as economic conditions allow”.

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