Anspruch auf Sonderzahlungen trotz Stichtagsklausel

In its current decision of May 13, 2015 (case number: 10 AZR 266/14), the Federal Labor Court not only dealt with the question of the emergence of an employee's claim when a special payment is granted without reservation (see our article on the right to special payments), but also with the recurring question in practice as to when a cut-off date clause can be effectively agreed upon for a special payment (be it Christmas or holiday bonuses, bonuses, loyalty bonuses, etc.).
With a cut-off date clause, the employer's purpose is to ensure that only the employee who is still in an employment relationship with him on the specified cut-off date (e.g. the payment date) receives the special payment. Employees who have previously left the company should not receive any special payment, even pro rata.
The Federal Labor Court recently severely restricted the admissibility of such deadline clauses. After According to the case law of the Federal Labor Court, a special payment can be made, which at least also represents remuneration for work already performed, cannot be made dependent on the (unterminated) existence of the employment relationship at a point in time within or outside the year in which the work was performed. A cut-off date clause would unreasonably disadvantage the employee and would therefore be ineffective according to Section 307 Paragraph 1 Sentence 1 BGB. If the employee leaves the employment relationship during the year, there is a pro rata claim to this special payment at the due date.
The decisive factor therefore depends on what purpose the employer is pursuing with the respective special payment and whether the special payment (also) has the character of remuneration. This must be determined by interpreting the contractual agreements. In case of doubt, the special payment can be assumed to be a remunerative payment if one of the following case groups is fulfilled:

The special payment is linked to the achievement of quantitative or qualitative goals.
The special payment makes up a significant portion of the employee's total compensation.
The special payment is made without any further eligibility requirements being agreed.
The amount of the special payment depends on the operating result according to the purpose set by the employer.

According to the case law of the BAG, it must be clear from the underlying agreement/regulation that the employer pursues purposes other than remuneration for work performance. Special payments without compensation are, in particular, “loyalty bonuses” for proven company loyalty or “retention bonuses” for future company loyalty. However, the employer can also pursue the purpose of contributing to the typically increased expenses of its employees at Christmas. However, the special payment may not depend on the employee's specific work performance.

Recommendation

If the employer wants to grant his employees a special payment, which he wants to make absolutely dependent on the existence of the employment relationship on a specific date, it should be noted that this is only permissible if the special payment is not consideration for the work performed by the employee, and the other purpose (e.g. loyalty to the company) is clear from the underlying employment contract agreement. When designing the regulations for such a special allowance, it should therefore be avoided that individual regulations - unintentionally - also suggest that the special allowance at least also has the character of remuneration.