In principle, any bonus or premium constitutes a gift, the payment of which is a matter for the discretion of the employer, unless
- it is payable by virtue of an express commitment, recorded in the employment contract or in the collective agreement, orthe obligation to pay derives from consistent practice.
- If the bonus or premium is provided for by the employment contract or the collective work agreement applicable to the company, it then constitutes a fixed element of the employee’s remuneration and payment thereof is obligatory in the same way as wages.
- In the absence of an express commitment, the employee must produce evidence that the bonus meets the requirements of being general, fixed and consistent, which are laid down by the case law for it to have the status of consistent practice.
General application
Award to all the staff or at least to a clearly defined category of employees.
It is not therefore necessary that all the employees in the company receive a bonus. It is sufficient that its general application is established in relation to a category of employees whose circumstances are the same.
Fixed amount or established method of calculation
The method of calculation of the bonus must be determined or determinable.
The bonus must be calculated on the same basis each year. That does not necessarily mean that the amount of the bonus must always be the same.
Consistent practice
Repeated payments.
The bonus must be awarded consistently, that is to say it must have been paid to the employee on several occasions in order to be able to reflect a genuine consistent practice.
Where there is a system of bonuses applicable to a company, no discrimination may be made between employees working under a contract of indeterminate duration and those working under a fixed-term or part-time contract. In the latter case, bonuses will have to be calculated pro rata to the weekly working time.