Denial of Christmas bonus can amount to sex discrimination
The European Court of Justice (ECJ) has ruled that a Christmas bonus constitutes pay within the meaning of Article 141 of the EC Treaty, even if it is paid voluntarily by the employer and even if it is paid mainly or exclusively as an incentive for future work or loyalty to the undertaking or both. The Court ruled that Article 141 precludes an employer from excluding female workers on parenting leave entirely from the benefit of a bonus paid voluntarily as an exceptional allowance at Christmas, without taking account of the work done in the year in which the bonus is paid, or of the periods for the protection of mothers (i.e. when they are prevented from working) where that bonus is awarded retroactively as pay for work performed in the course of that year. However, the Court found that refusal to pay the bonus can be justified by the fact that it is only awarded to workers who are in active employment at the time when it is awarded. Further, when granting a Christmas bonus to a female worker who is on parenting leave, employers are allowed to take periods of parenting leave into account, so as to reduce the benefit pro rata. However, employers are precluded from taking periods for the protection of mothers into account, in order to reduce the benefit pro rata. In other words, such periods of temporary unemployment must be assimilated to periods of employment. (Susanne Lewen v. Lothar Denda, Case C-333/97, Judgment of 21.10.99)
