Golden hello : the clause on the reimbursement of the welcome bonus in case of resignation is valid
The golden hello, or welcome bonus, is a practice which consists in paying a bonus to the newly hired employee, in order to encourage him to join his new employer and to build up the employee's loyalty over time.
In practice, the mechanism is as follows: the employee receives the full bonus upon arrival, but it is generally provided that if the employee resigns before a certain deadline, he or she will have to repay the bonus in proportion to the time not spent in the company.
The question raised was therefore the following : does the golden hello reimbursement clause infringe on the employee's fundamental freedom to work?
The employee's reasoning, validated by the Paris Court of Appeal, was that this reimbursement clause had the effect of setting a cost to the resignation, and therefore infringed his freedom to resign.
The French Cour de Cassation (May 5, 2023, No. 21-25.136) overturned this argument, ruling that :
- The purpose of the welcome bonus was to secure the loyalty of the employee in order to ensure his long-term collaboration.
By referring to good faith and to article 1134 of the Civil Code (now articles 1103 and 1104 of the Civil Code), the Cour de Cassation implicitly indicates that the employee had agreed to the conditions of acquisition of this bonus, the purpose of which he knew.
- The welcome bonus is independent of the employee's remuneration, which is not affected by the resignation.
Consequently, and without infringing on the employee's fundamental rights, the employer can demand the reimbursement of the bonus in proportion to the time not spent in the company.
Conversely, it does not seem allowed to ask for the reimbursement of the entire golden hello if the employee resigns before the fixed deadline.