Can the bonus be distributed unfairly?

The Federal Supreme Court had to deal with the complaint of an employee who felt that he had not been treated fairly when it came to bonus distribution. Four of his hierarchically equal colleagues received a bonus despite not fulfilling the conditions, while he did not. He sued for equal treatment.

According to the Federal Supreme Court, there had to be a clear disadvantage that violated his personality for the refusal of the bonus to be considered arbitrary discrimination. Improving the conditions for one group of employees does not necessarily mean that other employees are treated less favourably. This means that the favourable treatment of an individual employee or a minority and the discrimination of larger groups or even entire categories of employees is not objectionable.

The Federal Supreme Court thus places the principle of contractual freedom above the principle of equal treatment. (Source: BGE 4A_239/2021 of 16.12.2022)