Your employer pays a bonus every year in December, without being obligated to do so in your contract. After several years, this bonus disappears overnight. Do you have recourse? The answer depends on a specific legal mechanism: company practice. This concept, absent from the Labor Code, nonetheless structures a significant part of the relationships between employers and employees.
When an employer’s habit becomes a legal obligation
Company practice does not arise from a text. It is formed by the repetition of a practice that the employer adopts freely, without being compelled by law, collective agreement, or employment contract.
In practical terms, an employer who offers an extra day off on December 24 for several years creates a precedent. If this practice meets certain conditions, it acquires binding force. The employer can no longer terminate it without following a formal procedure.
This mechanism often surprises leaders of small organizations. They grant a benefit in good faith, without realizing that it will become an obligation. To better understand company practice in labor law, one must examine the three criteria established by jurisprudence.
Generality, consistency, and stability: the three criteria of company practice
The Court of Cassation requires the simultaneous fulfillment of three conditions for a practice to be recognized as a usage. If any of these criteria is lacking, the benefit remains a simple gratuity that the employer can withdraw at any time.
Generality: a collective benefit, not individual
The practice must benefit all staff or an identifiable category of employees. For example, all workers in a workshop, all managers in a department.
A benefit granted to a single employee falls under a different legal logic. It may constitute a unilateral commitment by the employer, but not a usage in the strict sense.
Consistency: a repeated practice over time
A one-time payment is never sufficient. The practice must be repeated over several consecutive periods. Jurisprudence does not set a precise minimum threshold in terms of years, but it examines the regularity of the payment or allocation.
A bonus paid three years in a row is more likely to be classified as a usage than a benefit granted twice in five years.
Stability: identifiable calculation rules
The benefit must meet objective and determined criteria. For a bonus, this means a stable calculation method: percentage of salary, identical flat amount, scale linked to seniority.
Beware of the common trap: a varying amount does not prove the absence of stability if the calculation method remains the same. The Pau Court of Appeal highlighted this point in a decision from January 2025. The analysis focuses on the rule, not on the numerical result.
Termination of a usage: the procedure the employer must follow
An employer wishing to eliminate a usage cannot simply stop applying it. The termination follows three cumulative steps. Failing to complete any of them renders the termination unenforceable against employees.
- Inform the employee representatives (social and economic committee, union delegates). This information must be formalized, distinct from a simple exchange during a regular meeting.
- Individually inform each employee affected by the usage. Posting on a board or sending a collective message is not sufficient according to prevailing jurisprudence.
- Respect a sufficient notice period to allow for possible negotiation. This period is not set by law, but it must give employees and their representatives time to respond.
As long as these three steps are not completed, the usage continues to apply. An employee can claim the payment of a terminated bonus without proper termination notice.
Proof and limitation: what matters before the judge
Do you believe you benefit from a usage that your employer refuses to acknowledge? The question of proof then becomes central.
Pay slips are the first reflex. They help demonstrate the consistency and stability of a bonus over several years. Internal notes, emails, and meeting minutes also serve as evidence.
Regarding deadlines, wage claims are subject to a three-year limitation period. In the event of contract termination, the claim for back pay can cover amounts due for the three years preceding that termination. Therefore, keeping your pay slips and any documents attesting to the practice is a basic precaution.
Discretionary bonus or disguised usage
Some employers label a bonus as “discretionary” to prevent it from being reclassified as a usage. This label is not enough to protect them. If the calculation method is stable and the three criteria are met, the judge may reclassify the benefit.
The name given to the bonus matters less than the reality of its allocation. An employee who notices a regularity in the payment has an interest in documenting this regularity, even if their employer refers to it as an exceptional reward.
What distinguishes usage from a collective agreement or a contractual clause
Company practice occupies a special place in the hierarchy of labor law norms. Unlike a collective agreement, it is not negotiated with unions. Unlike a clause in the employment contract, it can be unilaterally terminated by the employer, provided the procedure is followed.
This distinction has a direct consequence: a usage incorporated into the employment contract can no longer be eliminated without the employee’s agreement. If a contractual clause explicitly includes the benefit, the employer loses the ability to unilaterally terminate it. The boundary between these two regimes deserves particular vigilance when drafting contracts.
In the event of a business transfer, the usage in effect with the former employer temporarily survives. The new employer must, if they wish to terminate it, proceed with their own termination in the required forms.
Company practice remains a flexible tool that benefits employees as long as it is not formally challenged. For the employer, each repeated benefit deserves examination: a bonus paid out of habit can, in a few years, become a right enforceable before the labor courts.
