Gratification, bonus and 13th month pay

The gratification is often equated with the legally unregulated term bonus, which is used in everyday life for various variable benefits of the employer. However, the law understands a gratification as a benefit paid out in whole or in part on a voluntary basis by the employer, which means that he at least has a discretionary power in determining the amount. An amount fixed in advance, such as a 13th month pay, is therefore not a bonus but a salary component to which there is therefore an entitlement.

In everyday life, the inadequate legal regulation of this special remuneration leads to difficult questions of delimitation and is thus unfortunately the subject of numerous labour law suits. As a result, case law has developed various criteria, particularly with regard to the question of whether it is a salary component or a voluntary benefit from the employer.

For example, employees are not only entitled to a bonus if it has been contractually agreed, but also after many years of regular and unconditional payment. Furthermore, special remuneration can only be considered a voluntary bonus if it is accessory, i.e. of minor importance in relation to the basic salary. In order to answer this question, the Federal Supreme Court has in turn drawn up nuanced guidelines which can be (roughly) summarised with the principle "the lower the income, the more exists a claim".