Anspruch auf Sonderzahlungen

Every year at the end of the year, companies are faced with the recurring question of whether they will give their employees special payments in the form of bonuses or Christmas bonuses this year, and if so, how much. Especially in good economic times, companies want their employees to participate in the company's success in addition to the remuneration components already agreed to in the employment contract.
However, before employers simply pay out such special benefits to their employees, they are well advised to be clear in advance about the possible legal consequences associated with this for future years. Many employers later experience a nasty surprise when, in economically less successful years, they decide not to pay any or only a smaller special bonus. Your employees then cite a “claim arising from company practice” and, as in previous years, demand payment of the full special payment. And in many cases this is not without reason. According to case law, if the employer has unconditionally granted a special payment to its employees at the end of each year over a period of three years, a company practice arises that leads to the employee being entitled to receive the annual special payment in future years.

Binding even if you pay different amounts every year

One Current decision of the Federal Labor Court from May 13, 2015 (Az: 10 AZR 266/14) has now further intensified these binding effects of annual special payments for employers.
According to the BAG's previous case law, the rule still applied that in case of doubt, a company practice of granting a special payment in the future does not arise if the allowance was paid over three years, but in different amounts at the discretion of the employer. According to established case law, when a donation is made in amounts that vary from year to year, there is already a lack of regular, consistent repetition of certain behaviors. By granting a special payment in a different amount every year, the employer's will is expressed to make new decisions about the allowance each year “as it sees fit”.
The Federal Labor Court has now abandoned this legal opinion in its decision of May 13, 2015 and expressly emphasized that it no longer adheres to its previous case law. In the case on which the decision was based, an employer had paid his employee, with the remuneration for December paid on January 10th of the following year, an amount shown in the respective statements as a “special payment”, which amounted to €10,000 in 2007 and €10,000 in 2008 and in 2009 amounted to €12,500 each. The employee was of the opinion that he was also entitled to a special payment of €12,500 for 2010 because his employer had at least implicitly established a corresponding payment obligation to him by making a special payment without reservation in three consecutive years.
In its current decision, the Federal Labor Court first makes it clear that the repeated granting of benefits can give rise to an employee's claim even if the employer has only made a payment to a single employee and the collective element for an operational exercise is therefore missing. This is the case if the employee can infer an offer within the meaning of § 145 BGB from the employer's actual behavior, which he has accepted through coherent behavior in accordance with § 151 BGB. In the specific case, the employee was able to reasonably conclude that the employer was making a binding offer of the content, one in each calendar year, solely from the description of the benefit as a “special payment” in the respective statements, its three unconditional payment at the end of each year and its different amount Special payment to be made. Even if a special payment of different amounts is made, the employee may be entitled to an annual special payment, whereby the employer determines the amount of the special payment unilaterally at its reasonable discretion within the meaning of Section 315 of the German Civil Code (BGB).

Performance determination at reasonable discretion

The employer is obliged to demonstrate and provide evidence that the amount of the special payment determined by him in the coming years corresponds to his reasonable discretion. This applies in particular to a possible decision by the employer to set the performance at “zero” for the year in question in order not to grant a special payment. If the employer does not meet its burden of presentation and proof, or if the court determines that the benefit determination does not correspond to reasonable discretion, the court can determine the amount of the special payment itself in accordance with Section 315 Paragraph 3 Sentence 2 BGB.

Recommendation

Employers should urgently make sure to make it clear and understandable to employees that the granting of a special payment (bonuses, Christmas bonus, etc.) is only for the year in question and does not constitute a legal claim for the future. This is best done with a written voluntary reservation, which is renewed each time benefits are granted. This could be as follows:
“The granting of the …… is voluntary and with the proviso that no legal claim for the future arises or is established even with repeated payment.”