Spain: Bonus In The Last Doctrine Of The High Court Of Justice Of Madrid

Review of the latest pronouncements of the judicial doctrine of the Employment Chamber of the Madrid Supreme Court of Justice regarding bonuses

With regard to bonuses, a review of the latest pronouncements of the judicial doctrine of the Employment Chamber of the Madrid Supreme Court of Justice clears up four unknowns on certain and classic questions in this matter.

  1. - In the first case, the right of a worker (Industrial Teacher) to receive remuneration by objectives corresponding to the year 2014 was discussed, on the assumption that the company established that for this purpose it was necessary to comply with "individual and/or collective objectives defined by the Business/Service Management for each job position. The objectives may be quantitative or qualitative in nature. During the first quarter of each financial year, the objectives linked to variable remuneration shall be defined or revised."

    The Court of First Instance rejected the claim because the plaintiff only received €2000 as an "annual bonus" in March 2011 and did not do so in subsequent years, nor did the targets for the years 2011 to 2013 appear, nor did he make any claim for it, on the understanding that the worker therefore abandoned his right to claim variable remuneration for three years and that he could not claim the targets for 2014.

    However, the High Court judgement of 27 October 2017 (Comsa case; RS 258/2017) estimates the claim and orders the company to pay the sum of €3,546.20. In the first place, it stresses that the circumstances that may exist regarding the aforementioned remuneration corresponding to other annuities are indifferent and that it would not have claimed its non-payment in the face of a hypothetical right to receive it. Secondly, it refers to the fact that, being in the presence of an agreement which was not subsequently developed because the company did not wish to do so, it can only be interpreted in the most appropriate way so that it can have effect and against whomever included those clauses in the contract, which was obviously the company.

  2. - A second file analyses the case of a worker (manager) who, without any agreement on this matter, in the years 2011, 2012, 2013 and 2014 received, between March and June, amounts under the concept bonuses referred to the previous year, which amounted respectively to amounts of 3.150, 3.019,50 ,2.396,78 and 5.000. -€, not having been paid in 2015.

    The High Court judgement of 13 October 2017 (Case Concentra; RS 220/2017) confirming the judgement rejecting the Court of First Instance affirms that (a) the bonus was a remuneration variable according to the work carried out, paid freely and voluntarily, without any contractual or contractual obligation to do so and therefore nonconsolidable; and (b) furthermore, the rejection of the bonus stemmed from the fact that the company had proved that the circumstances had changed, since no profits had been obtained on the basis of which the plaintiff was paid.

  3. - In the third so-called analysis object, a Medical Director had been performing functions consisting of clinical trials with a contractual clause as follows: "A final variable remuneration (bonus) is established, subject to obtaining the authorization of the medicine in the EMA equal to 55,000. -€" European authorization that was not finally achieved because there were objections in the evaluation of the medicine and the company withdrew from the authorization.

    In response to a complaint filed by the employee requesting that the amount claimed of 55,000 be paid to her. The STSJ of 28 September 2017 (Case GES; RS 86/2017) dismissed the appeal, confirming the judgment of the Court of First Instance, since not only had not been proven the fulfilment of the condition agreed to accrue the bonus, but it was established that such condition had not been fulfilled, without the condition could not be understood as impossible to comply, since it was not the registration of a medicine in the EMA or that it was capricious or meaningless because it does not have the same commercial repercussion.

  4. - The last case analysed resolves the question of which salary should be taken into account after an unjustified refusal to readmit a voluntary surplus: should it be the one that would have corresponded to the time of re-entry or the superior that would have been received at the time of the leave, including the recently received bonus?

    The High Court judgement of 23 October 2017 (IBM case; RS 454/2017) is weighted because the regulatory salary for dismissal is that which would correspond to the worker at the time of termination of contract and not that which he received at the beginning of the leave of absence. It should be pointed out that one thing is that the applicant should be entitled to receive her updated salary (salary per month in proportion to 3,599.72 euros) and another, quite different, that, as a result of a bonus (amount of 20,170.48 euros) which she received just before starting her leave, the amount to which she was granted must be included in the modular salary, since there is no reason to include that bonus.

By way of recapitulation, and following the aforementioned judicial doctrine:

  1. º.- When a variable remuneration is fixed according to the degree of attainment of the objectives on which only the company whose management power is responsible for setting them, both of a general nature and the objectives to be demanded of its employees, depends, or what is the same, when the objectives on which the perception of the supplement was dependent are not known, this is an incentive pact subject to the exclusive will of one of the contracting parties (contrary to what is known in the contract law). 1256 of the Civil Code) and, therefore, an incentive pact in the amount promised.
  2. º. - In the absence of "rules of the game" on the accrual of a bonus, a priori, it is a variable remuneration that, if paid freely and voluntarily by the employer, is nonconsolidable in the future. And even more so, if it is proved in court that when it was paid it was in a situation of corporate profits.
  3. º. - The validity of the bonuses subject to the accreditation of certain conditions, provided that they are not impossible to fulfil or manifestly arbitrary.
  4. º. - The salary to be taken into account for calculating severance pay, after an unjustified refusal to readmit a voluntary surplus, is the updated salary corresponding to the time of reinstatement and not the superior that was received at the time of the leave of absence (by including a bonus).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions