Whether an employer could refuse a pregnant employee’s application to participate in a team building tour?

Many companies organize team building activities to increase employee interaction, and enhance teamwork spirit. Compared with other activities, tourism has more potential risks, so companies pay more attention to the safety and intensity of relevant issues, such as the location, schedule and so on. However, for those employees in special circumstances, such as a pregnant employee or an employee just recovered from a serious illness, the possibility of potential risks becomes higher. If there is any accident, the company may have to undertake more liabilities. Such as if an employee got injured, some courts may consider such injury sustained during team building tours as work-related injuries. Even if such injury are not considered as work-related injury, the employee may demand compensation from the perspective of infringement.

In order to reduce risks, whether a company could refuse the application of an employee who is in special circumstances to participate in such team building tour?

One of the basic principles of the “Labor Law” is the ‘non-discrimination’, which means it is inappropriate for a company to directly refuse such application.

It is recommended to take two steps to softly refuse such application. Firstly, to check whether there are any objective “obstacles”. For example, a pregnant employee is on a maternity leave, or a sick employee has provided his diagnostic file, in which the doctor suggested that he may have enough rest, and avoid overwork or intense activities. Secondly, to discuss with the employee, and recommend him not to participate in consideration of his health and safety, and etc.

In order to reduce such employees’ willingness to participate, companies may bear partial of the expenses rather than the whole. If the company bear the whole expenses, some employees may think that they have lost money if they do not participate. If employees have to bear partial of the expenses, in consideration of personal health, those employees may have less willingness to participate. If a company requires employees to bear partial of the expenses, the proportion shall be appropriate, because if the proportion borne by employees is too high, many employees may voluntarily refuse to participate.

If the company has taken two steps, but the employee still insists to participate, how to handle such circumstance?

Some companies may require such employees to sign a commitment letter, in which they promised to bear all the risks. In fact, such commitment letter could not eliminate all risks.  Article 1176 of the “Civil Code” stipulates that the “assumption of risk” principle only exempt the liabilities of other participants, however, the company is the organizer. As an organizer, according to Article 1198 of the “Civil Code”, the company shall have the obligation to ensure safety and security. Therefore, even if such employees have issued the commitment letter, companies shall still have such obligation. In other words, companies have to put more effort into fulfilling security guarantees, including but not limited to announcing sufficient risk warnings in advance, reminding warnings repeatedly during the tour, etc., and keep evidence. 

In addition, there is another problem related to team building tours, that is, whether such employees could require companies to pay in cash if they do not participate.

In judicial practice, the vast majority of courts held that such team building is a welfare other than a legal obligation, so companies could decide on their own welfare rules, such as they do not have to pay in cash to any employee who does not participate in such activities, such as, (2016) Jing 0105 Min Chu No. 60643, (2017) Hu 02 Min Zhong No.8758, (2020) Zhe 0203 Min Chu No.7449, etc.

However, there are two exceptions: (1) If the team building tourism expense is provided in cash, it is very possible for the court to support employees’ claim for cash. For example, in the case of (2014) Hai Min Chu Zi No. 19248, as the company provided each employee with CNY5,000 as travel expenses for team building, and employees could receive such expense by providing travel invoices for reimbursement. Although the company announced that such expense should be paid to employees who were on duty at the time, employees on maternity leave believed that this was a welfare for all employees, and finally the court ordered the company to pay; and (2) If the company provides a special welfare to those on duty employees who could not participate, and employees on maternity leave or sick leave believed that this was a welfare for all employees based on the “non-discrimination” principle, it is also highly possible for the court to support employees’ claim. For example, (2016) Yue 20 Min Zhong No. 3766.