On 22 June 2017 (docket number 8 CA 5233/16) the labour court in Cologne found that an employee is allowed to take part in company outings and events although he is on garden leave.
The employee and subsequently plaintiff had been working for the employer, an association that operates retirement homes, for almost three decades. Triggered by a change in the employer’s executive board, the employee agreed to be on garden leave for the last two years prior to his pension start date. Although on garden leave, he was still initially invited to the employer’s events, e.g. the Christmas party. Following another change in the employer’s executive board, the new chairman subsequently denied the employee any access to upcoming company outings or events.
The employee sued his employer and claimed to have a right to participate in company outings until his actual pension start date, even though he was on garden leave. He asserted that he had been orally granted an invitation to the upcoming events. Furthermore, the employee claimed that the General Principle of Equal Treatment would not allow the employer to exclude him from attending those events.
The labour court found that the employee had a right to participate in company outings on two different grounds – based on the General Principle of Equal Treatment and additionally based on an invitation that was made orally. The court ruled that, as long as company outings are generally held open to all employees, this constitutes a benefit on collective grounds. In such a case, an employer can only deny attendance to an individual employee based on an objective reason. Additionally, the court clearly stated that an employee might have the right to attend company outings, if this was granted to him individually.
The court stated that limiting access to company outings only to “active” employees could be seen as an objective reason for not inviting employees on garden leave. The court also made clear that an individual employee might be excluded from company outings if this employee had severely disturbed past events. However, as neither was the case here, the court ruled that there was no objective reason for excluding the employee from participating in the event. It emphasized that being on garden leave itself does not establish an objective reason on its own for an employee to be excluded from company events.
Employers should be aware of the fact that they are not able to exclude individual employees from generally open company outings or events, unless they can present an objective reason. According to the labour court in Cologne an option to prevent employees on garden leave from attending company outings or events could be to limit access to such events only to “active” employees. However, the decision can still be appealed and it has yet to be seen whether courts of a higher instance share the point of view of the labour court in Cologne.