By judgment of 23.06.2017 (6 Sa 173/17) the Regional Labour Court of Düsseldorf has ruled that with regard to the period from which the employee receives a pension, a free bus ticket provided by the employer to the employee’s wife is to be considered to be an occupational pension and therefore cannot be revoked.
The employer, a transport company, granted his employees and their husbands/wives a free bus ticket both for the period of employment and the period of retirement. The basis for these benefits was (inter alia) a works agreement of 1991. In 2016, the employer concluded a new works agreement, which was intended to replace all previous company provisions and works agreements regarding the free bus ticket, and according to which employees’ husbands and wives should no longer be granted a free bus ticket. The employee filed a suit against that.
The suit was only partly successful. In the opinion of the Regional Labour Court of Düsseldorf, the works agreement of 2016 could replace the provisions regarding the free bus tickets with effect from January 2016, since the previous provisions are of a collective nature and, therefore, according to the Federal Labor Court’s settled case law, could be subject to modification or cancellation by a subsequent works agreement. As a result, the plaintiff could not request a free bus ticket for his wife during his active period as an employee. However, the Regional Labour Court of Düsseldorf has ruled that the cancellation of the previous provisions by the works agreement of 2016 is ineffective insofar as it applies to the employee’s wife’s entitlement to a free bus ticket during the employee’s period of retirement. The Court pointed out that for the employee’s period of retirement the wife’s entitlement to a free bus ticket is to be considered to be an occupational pension, since the benefit is granted due to an insured event (the employee’s retirement age) and will be granted for the purposes of securing the employee’s standard of living in old age by saving costs within a joint family household. An intervention in occupational pensions is only possible under very strict conditions (due to the principles of the protection of legitimate expectations), which were not fulfilled the present case.
The decision shows that not only cash payments, but also benefits in kind, usage possibilities and discounts provided during retirement can be considered as an occupational pension. It does not matter whether such benefits are also granted to active employees.