BAG relaxes the requirements for a company exercise BAG 13.05.2015 - 10 AZR 266/14

An employee can also base their entitlement to a special payment on company practice if the employer has unconditionally made a different amount of payment three times at the end of the year. The employee may regard such conduct on the part of the employer as a binding offer within the meaning of Section 145 BGB to receive a special payment in each calendar year.

The plaintiff was employed by the defendant as a construction manager from May 1, 1992 to November 19, 2010. There was no written contract. With the remuneration for December paid out on January 10 of the following year, the plaintiff received an amount shown as a "special payment" in the respective statements, which amounted to EUR 10,000.00 gross in 2007 and EUR 12,500.00 gross in 2008 and 2009 respectively. The plaintiff took the view that he was also entitled to a special payment of EUR 12,500.00 gross for 2010. By unconditionally making a special payment in three consecutive years, the defendant had implicitly established a corresponding payment obligation towards him. The lower amount of the special payment in 2007 does not preclude the claim asserted for 2010. Following the dismissal of the claim by the lower courts, the plaintiff sought his payment claim on appeal.

According to previous case law, uniform conduct on the part of the employer could only be assumed if, according to the objective horizon of the recipient, the impression arose that the employer had set itself a rule and adhered to it. This was assumed if the employer had made special payments without reservation for at least three years, always at the same time and in the same amount. If the employer granted a benefit regularly, but in different amounts each time, there was no objectively expressed intention to grant the benefit in the same way in the future. The company practice could therefore be prevented. Exceptions were cases in which the difference was due to the fact that the amount of the special payments was always a certain constant percentage of, for example, the annual profit. Here, uniformity is ensured by the fact that the percentage always remains the same.

According to the new decision of the Federal Labor Court, it no longer adheres to its previous case law - insofar as it held that the regular payments in annually varying amounts lacked uniformity of conduct and were merely the employer's intention to always decide anew on further payments. Rather, it now takes the view that the fact that the amount of the benefit varies from year to year is not sufficient to exclude a legal claim on the part of the employee. The employee may rely on the fact that the special payment will generally be made annually and that a new decision will only be made on the determination of the amount in each case.

In the present case, the Federal Labor Court affirmed the plaintiff's claim to payment of the special payment on the merits. With regard to the amount to be determined, it found that the case was not ready for a decision and referred it back to the Regional Labor Court. In doing so, the Federal Labor Court instructed the Regional Labor Court that in the event that the defendant remains unable to provide evidence for the assessment of the amount, the defendant must be given the opportunity to submit that the determination of the benefit "at zero" for 2010 was in accordance with equitable discretion. If the defendant does not succeed in proving this, the Higher Labor Court must make the assessment itself.

Date: 13. May 2015