Parental leave / Reduction of the 13th salary
November 3, 2009 | 20,00 EUR | answered by Andreas Scholz
I will be on parental leave for two months in the middle of next year. My employer has now informed me that due to the interruption of the employment relationship, the 13th salary (as a contractual benefit) and an annual profit bonus (as a voluntary benefit) will be proportionally reduced. Can he do this unilaterally without my consent?
I found the following information on the internet:
"It is permissible to exclude those employees from a gratuity (e.g. Christmas bonus) whose employment relationship is suspended due to parental leave. In the case of a 13th salary (not a gratuity), a “possibly proportional” reduction due to parental leave is also permissible without explicit agreement."
In this context, what does "possibly" mean and what does the case law say about it, or what conditions must be met for the employer to be able to reduce proportionally if necessary?
Dear questioner,
The abbreviation "ggf." means that when it comes to the reduction of the 13th salary, it depends on whether the purpose of this payment is performance-related or loyalty-related (such as a gratuity).
In the case of profit sharing, the reduction would most likely be acceptable because it is a purely performance-related special payment.
For the 13th salary, it is not as easy to assess. If a Christmas bonus is also paid in addition to the 13th salary, the classification as a performance-related special payment would be likely, justifying a reduction. In addition, the wording in the employment contract is crucial. If it is determined that it is a loyalty-related payment, for example because the payment is not tied to how long the employee has been with the company, a reduction would be impermissible.
In conclusion, a partial reduction of profit-sharing payments due to parental leave is possible. For the 13th salary, this would only be possible if it is a performance-related payment. If it is a gratuity (which, based on your information, is not the case), a reduction would not be possible. Whether a gratuity or a performance-related payment is intended must be inferred from the employment contract or collective agreement.
I hope this information has been helpful to you, if you have any further questions, please do not hesitate to ask.
Best regards,
Andreas Scholz, Attorney
