(Cass. soc., 30 April 2009, n°07- 40.527): In a previous case (Cass. Soc. 27 March 2009), it was held that a collective variable compensation plan cannot provide for total discretion from the employer in terms of the payment of bonuses, requiring such bonuses to be based on rules that are defined in advance and can be monitored. As such, employers can no longer decide whether variable compensation should be paid on a fully discretionary basis as visibility must be provided to employees.
Following on from this, the Cour de Cassation has confirmed that the principle of equal pay for work of equal value must be applied to variable compensation as well as basic salary, and the employer cannot claim that the bonus was discretionary in nature to avoid the requirements of the equal pay principle where no objective grounds for such a difference in compensation can be shown.