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Created on Monday, 10 September 2012 15:59

Last Updated on Friday, 28 December 2012 18:59

Christmas Bonus Despite Termination?

Special allowances can be made dependent on the employment relationship not having been noticed for termination. A relevant effective date provision was upheld in a current decision of the BAG (January 18, 2012, re 10 AZR 667/10) on controls for general terms and conditions.

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Pursuant to §§305 BGB, form employment agreements are subject to the reformed law of obligations of controls on general terms and conditions. This is based on the consideration that employees are existentially dependent on work for payment and thus appear particularly worthy of protection due to their personal dependency on the economically superior employer. The issue of whether so-called effective date previsions unreasonably prejudice the employee had not been conclusively resolved until then.

Under the provision at issue, the plaintiff was to receive a Christmas bonus together with her November wages. This right was made conditional, however, on the employment relationship not having been noticed for termination as of the time of payment (effective date provision). In the view of the Federal Labor Court, there were no objections to the validity of such a provision pursuant to §307 I sent. 1 BGB, because they do not unreasonably prejudice the employee.

NOTE:

Such special allowances may not be intended as payment for work activities. This is to be presumed when they are simply linked to the status of the employment relationship - and not on particular performance by the employee. Accordingly, in drafting such clauses, care should be taken to use relevant precise phrasing.