Variable remuneration of employees – Calculation: Social cassation September 27, 2023 - n°22-13.083

When an employee's remuneration includes a variable part, the employer has the obligation to communicate to the employee all the parameters allowing it to be calculated , particularly when it depends on the achievement of annual objectives.

It is recalled that the employer must bring these objectives to the employee's attention from the start of the financial year.

What happens, however, when these objectives or the methods for calculating the variable portion turn out to be, at least in part, confidential?

Can the employer hide behind the interests of the company to refuse to communicate them?

The Social Chamber of the Court of Cassation was recently asked to answer this question.

In this case, employees of a company had submitted requests to the industrial tribunals for a reminder of their annual bonus balance, arguing that they had not had knowledge of the objectives and the methods for setting them.

When the variable part of the remuneration provided for in the employment contract depends on the achievement of objectives set unilaterally by the employer and the latter has neither determined the objectives to carry out nor set the verifiable calculation methods of the variable part, it is in fact fully due.

In its defense, the employer maintained that the methods of calculating the variable part constituted“discretionary data that should be kept confidential given the sector of “competitive activity that has global objectives”.

The Industrial Tribunal, ruling as a last resort, agrees with him.

The judgment is overturned by the Court of Cassation. Indeed, the employer must absolutely enable the employee to verify the calculation of his bonus based on objectivesfrom the start of the financial year.