Is your employer demanding part or all of your Christmas or vacation pay back? This is only possible under certain conditions. We will show you what you need to look out for.
Can the Christmas bonus be reclaimed?
Not all Christmas bonuses are the same. A distinction must be made as to whether the special payment was made for future loyalty to the company (bonus) or for loyalty already rendered to the company (13th monthly salary) or even completely independently of loyalty to the company. Employers may demand the repayment of Christmas bonuses if employees are dismissed if it is
1. is a bonus and
2. a repayment obligation has been agreed.
Here too, however, the aim is to avoid tying employees down for too long. Therefore, repayment obligations are only effectively agreed if they are limited in time. Special payments of less than EUR 100.00 are completely excluded from a repayment obligation.
Amount of bonus determines length of commitment
For bonuses from EUR 100.00 up to one month's salary, a lock-in period until March 31 of the following year is permitted. This means that if an employee gives notice before March 31 of the following year, the Christmas bonus must be repaid in full if a corresponding agreement has been made.
In the case of special payments of up to two months' salary, a lock-in period until June 30 of the following year is permitted. If more than twice one month's salary was granted as a bonus, a staggered repayment with a maximum commitment period of 9 months can be agreed. If employees leave the company by March 31 of the following year, for example, up to one and a half months' salary would have to be repaid under such a staggered repayment agreement. If the employee leaves by June 30 of the following year, one month's salary would have to be repaid and if the employee leaves by September 30 of the following year, half a month's salary would have to be repaid. A longer commitment cannot be agreed, regardless of the amount of the bonus.
If the Christmas bonus was paid as a so-called 13th month's salary, it is to be seen as remuneration for work already performed and does not have to be repaid. In this case, it is assumed that the Christmas bonus was "earned" in the previous year.
Do I have to pay back vacation pay?
Vacation pay is defined as a voluntary additional special payment by the employer. It is usually a bonus. However, an entitlement to vacation pay can arise from collective agreements or company practice. In individual cases, the wording of the employment contract is also not clear enough and justifies an employee's entitlement to payment of vacation pay.
This is to be distinguished from vacation pay. All employees are entitled to this as a statutory entitlement to continued payment of wages (see also https://rotwang-law.de/urlaub/).
Vacation pay as a voluntary payment can be paid as a one-off payment at a freely definable point in the year or together with vacation pay for days of vacation actually taken. If the vacation pay is paid once and independently of the vacation, as in the first case, it is a voluntary payment - a bonus. If the vacation pay is paid on a pro rata basis for days of vacation actually taken, this is known as an accessoriness of vacation and vacation pay.
Repayment obligation
If the vacation pay was paid as a bonus, repayment agreements can be made. These are permissible in accordance with case law on bonuses (see section "Amount of bonus determines retention period").
If employers pay vacation pay depending on the number of days of vacation actually taken, this cannot be reclaimed if the termination occurs after the vacation. The following applies: If vacation pay is paid, the vacation pay is due.
If there is an entitlement to vacation pay because this is contractually guaranteed and the waiting period under employment law for the vacation entitlement to arise has been fulfilled, a reclaim is also excluded if the employee is dismissed.
Example: Employee B has been employed by his employer H GmbH since January 1, 2020. In accordance with the statutory regulations, his vacation entitlement arises after six months of employment. Anton would therefore have been entitled to leave for the first time from July 1, 2020. Anton took a total of three weeks' vacation in May and August 2020 and received vacation pay. He resigns in September 2020 and his employer demands the vacation pay back for a total of two weeks.
In this case, Anton does not have to pay back any vacation pay. The waiting period of six months is fulfilled at the time of termination in September 2020.
If you are facing repayment claims, we will be happy to help you quickly and easily. Arrange a free initial consultation now at your preferred time.
