Table of Contents
What is a gratuity?
Bonuses or special allowances are services provided by the employer that are not paid regularly with the wages, but are granted on specific occasions or on specific dates (e.g. Christmas, vacation, anniversary). They should represent recognition for services already performed and at the same time provide an incentive for future performance. The gratuity is therefore a kind of reward for the employee's proven loyalty to the company.
A distinction must be made between bonuses and bonuses from the employer, which are purely remunerative. This category includes the »13. Monthly salary «, which represents a pure additional remuneration to which the employee is entitled without further requirements (such as a certain length of service) and which is paid for the work actually performed in the accounting year.
When is there a right to a bonus?
An employer can either give a gratuity voluntarily (without the employee's legal entitlement) or he can be legally obliged to do so. In the latter case, an employee can even sue for the bonus.
There are various legal bases for entitlement to a gratuity, it can result directly from the employment contract, an applicable collective agreement, a works agreement, the principle of equal treatment or even based on "company practice". A claim based on reason businessAs a rule, it is common practice if an employer has paid a gratuity three times in a row without an express reservation, so that the employee could trust that the employer would continue to grant the gratuity in the future.
However, if the employer pays a special bonus with the declaration of a voluntary reservation (e.g. "This bonus is a one-time voluntary benefit, the payment of which does not give rise to a legal entitlement for the future"), the employer can decide every year whether and in which way Amount he would like to pay his employees a bonus. This applies even if the employer has already granted a special allowance for several years in a row.
Which employees get a bonus?
Whether you are entitled to a gratuity is regulated in the employment contract. If, for example, past loyalty to the company is to be rewarded with a bonus, a specific date (often November 30) is usually specified on which the employment relationship must still exist in order for the employee to benefit from this special bonus. If, on the other hand, the gratuity serves as an incentive for future loyalty to the company, it is usually stipulated in the employment contract that the employment relationship must last beyond this reference date until the end of a certain binding period that is reasonable for the employee in the following year.
According to the principle of equality, all employees or a certain group of employees (e.g. all in-house employees) in a company are entitled to the payment of a bonus. Certain employees may not be arbitrarily excluded from this right. The gratuity can only be denied to employees for objective reasons, e.g. B. because of only a short period of employment.
However, full or part-time employment of an employee would not be an objective reason for a differentiation when granting a bonus. The employer is also not allowed to distinguish between white-collar workers and manual workers. The case law of the Federal Labor Court recognizes origin, gender or trade union membership as further arbitrary differentiating features. Employees who are excluded from the grant of a gratuity for such arbitrary reasons can sue their claim in the labor court.
The principles mentioned also apply to the calculation of bonuses. Different amounts are also only permitted for objective reasons. Personal sympathy between the boss and his employees, for example, would not be an objective reason for granting bonuses of different sizes (although this is often done in practice). If this happens in your company, you have a good chance of getting your rights.
When can the boss reduce the bonus?
A previously paid bonus may only be reduced if this is expressly reserved for the employer in the employment contract, an applicable collective bargaining agreement or a works agreement. Agreements are also permitted, according to which a bonus may be reduced due to sick leave or by taking parental leave. On the other hand, reductions due to absenteeism due to vacation leave or the maternity leave period are always inadmissible. In collective agreements, a reduction the gratuity in the event of short-time work. The performance of basic military service can also justify a reduction in bonuses.
If you are paid a real 13th month's salary as a special bonus (e.g. as a Christmas bonus), this can be reduced proportionally or even completely omitted in the event of absenteeism, especially since this is purely an additional remuneration for the work actually performed during the year of entitlement. As a rule, you will then receive one twelfth less absenteeism per month.
When does a bonus have to be paid back?
In the event that an employee leaves the company, employers often request a special allowance that has already been paid back. This applies above all to bonuses that were paid as an incentive, i.e. for outstanding services. However, as an employee, you are not obliged to repay bonuses in all cases. The following applies in detail:
· You are only obliged to repay if this has been expressly agreed. Such agreements are also called repayment clauses.
· If there is such a repayment clause, gratuities can still only be claimed back up to the expiry of a certain period. The length of these so-called commitment periods depends on the amount of the special allowance received.
The Federal Labor Court has stipulated that the binding periods associated with a repayment clause must not be disproportionately long. Otherwise, workers could be restricted in their professional freedom of movement, which is guaranteed by Art. 12 of the Basic Law, in an unreasonable manner. The Federal Labor Court has therefore drawn up the following guidelines, which employers must use as a guide:
If you leave the company, you do not have to repay gratuities of less than DM 200 (maximum DM 199.99).
If the bonus amounts to at least DM 200 but is less than one month's salary, the commitment period can last until March 31 of the following year. That means: If there is such a repayment clause and you leave the company before the end of March 31st, you have to repay the bonus.
In the case of bonuses of a full month's salary and more, the employee may be committed until June 30th of the following year at the latest.
Repayment clauses that differ from this are generally ineffective and can be contested.
If you have received a special allowance in the form of a real 13th month salary, you are generally entitled to a pro rata entitlement of one twelfth per month of employment, unless otherwise agreed.
Gratuities - important judgments
No gratuity in case of incapacity
If an employee is and will remain permanently unable to work in the future and his employment relationship is therefore only formal, his claim to a Christmas bonus is excluded even if the collective agreement requirements for this special allowance are met.
BAG, February 11, 1998 - AZ: 10 AZR 264/97
Repayment in the event of early departure
In principle, repayment clauses are also permissible, which provide for a reimbursement of a bonus received in the event of a termination for operational reasons. However, in exceptional cases, an employee may not be obliged to repay if the employer gave notice of termination during the probationary period solely in order to realize his repayment claim.
LAG Hamm, July 30, 1999 - AZ: 10 Sa 744/99
Bonus after performance
An employer must always observe the principle of equality, even in the case of a voluntary special allowance. Unequal treatment of individual employees is only permissible if the distinction based on the purpose of the benefit is justified. The employer must inform his employees about this in good time. It is therefore not acceptable for the payment of a bonus to be made dependent on the work performance of an employee in retrospect.
LAG Hamm, S. 11. 1997 - AZ: 10 Sa 1006/97