Awarding an exceptional bonus for extra work to non-striking employees is not discriminatory

Cass. Soc., 3^rd April 2024, n°22-23.321

According to Article L.2511-1 of the French Labour Code, the exercise of the right to strike may not give rise to any discriminatory measure, particularly regarding pay.

Thus, in principle, it is discriminatory for an employer to award a bonus to employees depending on whether or not they have taken part in a strike (Cass. Soc., 1^st June 2010, n°09-40.144).

The employer may, however, grant an exceptional bonus to non-striking employees if the reason for the payment of this bonus is unrelated to the exercise of the right to strike. This is precisely what the Supreme Court specified in this case of 3^rd  April 2024, concerning the payment of an exceptional bonus to certain non-striking employees because of the extra work they had to do.

In this case, an employer announced, at an extraordinary meeting of the Economic Committee, the payment of an exceptional bonus to certain non-striking employees, awarded on account of an “exceptional overload of tasks entrusted to certain employees” and intended to reward the extra efforts made by certain employees who had agreed to carry out tasks outside their usual functions.

Believing themselves to be victims of discrimination in the exercise of their trade union activities and their right to strike, the striking employees brought an action against the employer before the Court seeking payment of back pay corresponding to the amount of this exceptional bonus, as well as damages.

Sensitive to their arguments, the Lower Courts ordered the employer to pay each employee the requested back pay, considering that this exceptional bonus, granted only to non-striking employees, constituted a discriminatory pay advantage.

The Supreme Court censured the reasoning of the Lower Courts.

Referring to Article L.2511-1 of the Labour Code, the High Court pointed out that the award to certain non-striking employees of an exceptional bonus corresponding to extra work or the performance of tasks outside those provided for in their employment contract did not constitute a discriminatory measure, this attribution having a cause unrelated to the right to strike.

In practical terms, in order to determine whether or not the award of a bonus to non-striking employees constitutes a discriminatory measure, the Courts must determine whether:

• The bonus in question was paid to all non-striking employees or only to non-striking employees who agreed to carry out additional tasks outside the scope of their duties;
• The sole purpose of the bonus was to compensate for extra work.

This decision is in line with the previous case law handed down by the Supreme Court in this area, which has previously admitted that the employer may grant a bonus to non-striking employees, provided that an increase in workload has been identified (Cass. Soc., 3^rd May 2011, n°09-68.297).