In the event of termination, the question arises as to the extent to which Christmas bonuses received are to be repaid or still have to be paid out.
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1. Christmas bonus and termination
Just over half of all employees in Germany receive a Christmas bonus in the form of an additional pay distribution on the occasion of Christmas. As long as the money is paid out (usually with the November salary), very few people will (have to) think about the legal nature or the exact form of the Christmas bonus in the employment relationship with the employer. If the employer-employee relationship was however terminated by one side or dissolved by mutual agreement by a termination agreement, the question stands fast in the area, whether still Weihnachtsgeld can be required or whether already paid out Weihnachtsgeld must be paid back again completely or partly to the employer. In this case, the relevant labor law regulations on Christmas bonuses must be examined more closely.
2. Gratuities, special payments and 13. Monthly salary
A gratuity (literally actually: favor) is a financial allowance for a specific occasion in addition to a normal salary. In addition to the Christmas bonus, this also includes the additional vacation bonus or anniversary payments for a longer period of service with the company.
The reason for a bonus is not always the same. It is necessary to distinguish between
- an additional payment (remuneration character),
- Payments that are intended to reward loyalty to the company (reward character) as well as
- Mixed forms with remuneration and reward character (mixed character).
The "real" 13. The 13th month’s salary is to be regarded as a pure remuneration arrangement without any reward character. However, many employers designate their special payments inaccurately with regard to the reason for payment. Often a certain company loyalty should be rewarded or a mixed form should be implemented. Gratuities are not regulated by law, but there are often provisions in the employment contract, a company agreement or a collective bargaining agreement.
Even without explicit- so written- arrangement may give rise to a claim to a Christmas bonus, namely in the case of three unconditional payments, a so-called. company exercise. The employer can avoid one by making the distribution individually each year (z.B. with fluctuating contribution amount or. basis of calculation). Another possibility is to combine the payment with a corresponding declaration that the payment is made without recognition of a legal obligation (so-called. Voluntary clause).
The employer’s options for reducing or completely refusing bonuses in the event of termination depend on the reason for the distribution of the Christmas bonus and the standardization of labor law.
3. Distribution regulations for gratuity payments
First of all, the employment contract and other regulations must be checked to see whether there are any distribution regulations, i.e. whether a Christmas bonus can be claimed at all. Then the reason for the distribution must be worked out. In the case of Christmas bonuses, it is unfortunately not possible to say across the board whether the bonus was intended by the employer as additional remuneration or as a reward for loyalty to the company.
Many regulations make an entitlement to a Christmas bonus dependent on whether an employee was still employed by the company on a certain date (cut-off date) and whether the employment relationship had already been terminated at that time. Within the framework of such a cut-off date clause, it is generally taken into account whether notice of termination has already been given on the cut-off date.
As a general rule, if the Christmas bonus merely and exclusively rewards company loyalty, the claim to the Christmas bonus can be excluded. If, on the other hand, the Christmas bonus at least also represents remuneration for the previous work performance (pure remuneration purpose or. special payment with a mixed character), it can at most be reduced proportionately, as the employee has already earned a proportionate claim to the Christmas bonus for the duration of the employment relationship. Accordingly, in such a case, the Christmas bonus cannot be completely denied solely because the employee left the company before the end of the year (or before Christmas) (BAG v. 13.11.2013- Az. 10 AZR 848/12).
Example 1: Christmas bonus is treated as a "real" bonus in the company 13. Monthly salary (and thus as a remuneration benefit) paid together with the November salary. If employee A leaves the company at the penultimate quarter of the year and thus at the 30. If A leaves the company on September 30, A is still entitled to 9/12 of his 13. monthly salary. The fact that A leaves the company before the planned payout is of no particular significance in this respect.
Example 2: If A leaves the company at the end of the year in the above example, he will receive the full 13. monthly salary.
4. Repayment of Christmas bonus in the event of termination
A distinction must be made between the question of whether a claim to a Christmas bonus exists at all and the aspect of whether Christmas bonuses already received must be repaid if the employee leaves the company. In principle, it is (also) permissible in this case to make the repayment of Christmas bonuses dependent on certain factual conditions.
Thus, in practice, certain cut-off date regulations are also customary for the repayment obligation. These stipulate that the employee must repay any Christmas bonus already received if the employment relationship is terminated on the cut-off date.
On this complex of topics, the Federal Labor Court (Bundesarbeitsgericht, BAG) has established decided guidelines as to which regulations are permitted and which are not. A distinction is also made according to the amount of the Christmas bonus paid. Of course, the circumstances of the individual case are decisive in the end. The following conditions apply.a. to be noted:
- The employee cannot be bound to the company indefinitely by the key date regulation
- Reservations of repayment for Christmas bonuses of up to 100 euros are not permitted, i.e. the employer cannot reclaim this money
- In the case of Christmas bonuses over 100 euros, but of less than one month’s salary, the deadline for a repayment obligation may not be later than the 31st day of the month. March of the following year. The decisive factor is whether the employee is still with the company on this date (even if the employment contract has already been terminated at this time)
- For Christmas bonuses of one or more months’ salary, the effective date may not be later than 30. June of the following year
- It is disputed to what extent a repayment agreement is also permissible if the employer terminates the employment relationship for operational reasons. This is said to be possible in principle (BAG v. 18.01.2012- Az. 10 AZR 667/10)
Example 3: Does an employee with a salary of 3.000 Euro a Christmas bonus of 1.500 euros (gross in each case), this may not be reclaimed if the employee on 31. March of the following year. Whether a notice of termination has already been given at that time is irrelevant.
Example 4: If an employee with a monthly salary of 3.000 Euro a full salary as a Christmas bonus (3.000 euros), this may no longer be reclaimed if the employee is still working for the company on 30. June of the following year still has a valid employment contract in the company. This is true even if the employment contract ends at 30. June was terminated or the employee is already released from work on this date.
5. Conclusion and practical tip
The following applies in particular to the (re)payment of Christmas bonuses: The exact wording of the regulation in the employment contract, the company agreement or the collective agreement is often decisive for the effectiveness of a regulation.
Case law on the subject of Christmas bonuses is very extensive. In addition to the question of the extent to which a reduction of the Christmas bonus due to termination is permissible, the aspect of whether the Christmas bonus regulation in question stands up to legal scrutiny at all naturally also plays a role. Many regulations fail an AGB control because of unreasonable disadvantage (of the employee) after§ 307 BGB. Differentiation in the amount of the Christmas bonus is of course possible under the terms of the employment contract. If, however, a distinction is made between different employees as to how much Christmas bonus they each receive, it must always be clearly evident what the objective reason for this differentiation is.