Bonuszahlungen im Ermessen des Arbeitgebers – zulässig, aber überprüfbar

In practice, bonus commitments are often the cause of lengthy disputes between the parties to the employment contract, especially if the employee in question left the company during the year and still demands a (pro-rata) bonus for the last year.

In the following legal disputes, the employers have so far primarily relied on the fact that the employee has no claim because it is clearly stipulated in his employment contract or the bonus regulations that (a) the bonus is granted voluntarily and without recognition of a legal obligation (so-called voluntary reservations). ) and/or (b) only those employees who were still employed by the employer on the specified date receive a bonus (so-called key date clauses). After the Federal Labor Court has now decided several times that such clauses unreasonably disadvantage the employee and are ineffective according to Section 307 Paragraph 1 Sentence 1 BGB if the special payment is at least also remuneration for work already performed (see our article on the right to special payments despite deadline clauses), the dispute in the proceedings now focuses on whether the employee was actually promised a claim and, if so, to what extent.
In a recent decision dated August 3, 2016 (Ref: 10 AZR 710/14) once again dealt with numerous legal and procedural questions in relation to a bonus promise, for which the amount of a possible bonus was not regulated in detail in the employment contract. The employee's employment contract contained the following clauses:

At the company's discretion, the employee participates in the company's current bonus system and/or deferral plan for non-tariff employees via a calendar-yearly bonus or deferral award.
A bonus can only be paid out or a deferral award can be allocated if and to the extent that the company has funds for the distribution of bonus payments/or Allocation of deferral awards to the company's employees for the bonus-relevant calendar year and the employee meets the requirements for the payment or allocation.
The payment of the bonus or allocation of a deferral award is voluntary and cannot lead to an obligation on the part of the company to continue such payments or allocations, even after repeated granting.
The bonus for a calendar year should be paid out in the spring of the following calendar year, but is due for payment by the end of June of the following calendar year at the latest. The allocation and payment of the Deferral Award takes place in accordance with the regulations of the Deferral Plan in its currently valid version.
A bonus will only be paid or a deferral award issued if the employee has an unterminated employment relationship with the company at the time it is due. The same applies to the payment of the deferral award.

After the BAG made it clear again in its decision that neither the voluntary reservation in Section 3 nor the cut-off date clause in Section 4 conflict with an employee's claim, it then addressed the question of whether and, if so, to what extent the employee should be entitled to a claim Bonus entitlement.
The Federal Labor Court first stated that the wording in paragraph 1 clearly indicates that the employee has a legal right to participate in the company's bonus system and/or deferral plan and to the benefits resulting from this. However, according to the regulation in paragraph 1, the employer can determine whether a bonus or a deferral award or a combination of both types of benefits will be granted for the respective financial year; The employer can also determine the amount of the benefit, as this is not specified in the employment contract. According to the Federal Labor Court's clear statements, the amount and type of a bonus payment do not have to be conclusively determined in the employment contract, but can also be left to the employer's unilateral right to determine performance. This is then a so-called discretionary bonus.
However, in this case too, the employer is not allowed to freely decide whether to grant a bonus. Rather, the performance determination must always be based on reasonable discretion within the meaning of the legal regulation of Section 315 Paragraph 1 of the German Civil Code (BGB). A regulation deviating from this would affect the employee in accordance with Section 307 Paragraph 1 Sentence 1 in conjunction with. Paragraph 2 of the German Civil Code (BGB) would unfairly disadvantage you and would therefore be ineffective.
A performance determination corresponds to reasonable discretion if the employer has weighed up the essential circumstances of the case and appropriately taken the interests of both sides into account when making its decision. The employer is left with some leeway to be filled at his or her own discretion. Within the scope, the employer may have several decision options available to him.
In this respect, however, it should be noted that in the context of possible legal proceedings, the employer must explain and prove the circumstances that support its determination of benefits and their fairness. This includes, among other things, the presentation of which employees should participate in a bonus system and according to which criteria.
If the employer cannot provide any or no sufficient argument in the process as to why its performance determination should be based on reasonable discretion, the legal consequence is that the performance determination made by the employer is non-binding according to Section 315 Paragraph 3 of the German Civil Code (BGB). This in turn means that the court itself has to determine the benefit in accordance with Section 315 Paragraph 3 Sentence 2 BGB and thus decide directly on the amount of the bonus entitlement. The court must make its determination of compensation based on the existing litigation material and the entire submissions of both parties. There is then no longer any burden of presentation and proof in the procedural sense; rather, each party is required to present the circumstances that support their position, because the court can only incorporate the circumstances known to it into its determination.
According to the Federal Labor Court's information in the decision, the bonuses paid in previous years can represent an important factor in determining performance, as they regularly express what amount such a benefit should be paid under which specific circumstances (employee's performance, company success, etc. ) can reach. Other factors in the case decided by the Federal Labor Court were the employee's performance in the relevant period, the sales figures of his department, the amount of benefits to other employees, the company's key economic figures and the size of the bonus pot.
Recommendation

Employers who promise their employees a discretionary bonus by reserving the right to decide on the amount of the annual bonus in the contract are well advised not to set the annual bonus arbitrarily, but rather to set up certain decision criteria that can withstand discretionary review by the courts. Otherwise, you run the risk that the courts themselves will decide on the amount of the bonus, which can have unforeseeable consequences.