On October 4, 2024, the Supreme Court of the Republic of Slovenia issued judgment VIII Ips 9/2024, in which it addressed the issue of the justification of reducing business performance pay for sickness absence, specifically from the perspective of a violation of the prohibition of discrimination.

The Court held that the employer must ensure equal treatment of employees in terms of business performance pay based on personal circumstances. It is not inadmissible to consider the number of days of attendance at work when determining the criteria for recognizing and calculating business performance pay, but the use of this criterion must not be discriminatory.

In the specific case, the Court found that all the conditions for establishing discrimination were met, as the plaintiff was treated less favourably in the calculation of performance pay due to his personal circumstance (health condition), and the plaintiff and the employees who received higher performance pay were in comparable situations.

The Court's decision will undoubtedly have negative financial consequences, especially for employers in the private sector, where many have used employee sick leave as a criterion for reducing business performance pay. The ruling will also impact all future decisions of employers regarding the payment of performance pay and the formulation of criteria for its payment.

For more information regarding the judgment, we invite you to contact Maja Skorupan and Žiga Sternad.