In employment relationships, it is not uncommon for employers to decide to grant employees various benefits—either in the form of money or benefits in kind—on their own initiative, without these being regulated by the individual employment contract, the applicable collective agreement, or a normative act in force.

Even if these forms of compensation are, in most cases, well-intentioned – either to motivate employees or as a loyalty measure – they can, over time, have unforeseen legal consequences. Repeating these grants without formally clarifying their nature and conditions risks creating implicit obligations for the employer and, possibly, disputes in the event of their unilateral suspension or modification.

This material aims to provide employers with a clear framework for guidance on the legal treatment of benefits granted outside of contracts and practical recommendations for preventing the legal risks associated with such practices.

Unilateral practices in labor relations – definition and examples

By unilateral practice, we mean situations in which the employer grants certain rights or benefits to employees on its own initiative, without there being an express obligation to do so, derived from an individual/collective employment contract or from a normative act. Such benefits may include: occasional bonuses or performance bonuses, additional days off in addition to those required by law, reimbursement of expenses, vouchers, or other forms of reward.

Such benefits are usually granted to reward performance or maintain a positive organizational climate. The problem arises when these practices become recurrent and are applied without clear conditions, which may create, in the employee's perception, an earned right.

Between generosity and contractual obligation: how are unilateral practices treated?

In Romanian case law, benefits offered without formal regulation are treated differently on a case-by-case basis. In the absence of a clear and uniform line, the courts have oscillated between the following interpretations:

• Liberality – the employer grants a benefit on its own initiative, without this gesture creating a recurring legal obligation. In this case, the employee cannot claim to maintain the benefit, but is also not obliged to return the amounts received.
• Tacit agreement between the parties – by repeatedly accepting the benefit without objection, an agreement would have been formed between the employer and the employee, which could transform the benefit into an enforceable right.

However, this second approach is debatable in relation to the formal requirements imposed by the Labor Code, particularly with regard to the obligation to put any amendments to individual employment contracts in writing.

At the same time, the lack of clear regulation on this issue leaves room for flexible interpretations in court, which creates a significant risk for employers.

Can a unilateral practice be stopped?

The employer has, in theory, the right to discontinue a benefit that is not provided for by law or contract. However, if the benefit has been granted repeatedly, consistently, and without conditions, employees may claim that it has created a legitimate expectation.

Sudden suspension without clear justification and without prior notice may be considered abusive by the court, with consequences for the organizational climate or even the risk of legal action.

To avoid such situations, we recommend that employers:

- communicate in advance the decision to discontinue the benefit;

- justify the decision in a transparent manner (e.g., due to a change in the economic situation, reorganization, etc.);

- apply the decision in accordance with the principle of good faith (Article 8 of the Labor Code).

Financial liability: can the amounts granted be recovered?

In certain cases, employers may consider that a benefit has been granted in error and may request the employee to repay the amounts received. However, the mere fact that the benefit was not expressly provided for in a contract or addendum is not sufficient to justify recovery.

According to Article 256 of the Labor Code, the employee may be required to repay amounts only if they were received unduly, i.e., without legal or contractual basis, and, in general, due to an error on the part of the employer. Therefore, if the benefit was granted knowingly, repeatedly, without reporting an error, the court will most likely reject the request for restitution.

Recommendations for employers

Formal regulation of recurring benefits

If a certain benefit is granted on a regular basis, it is advisable to include it in a legally binding document – an addendum, internal regulations, or a clear salary policy.

According to Art. 17 para. (3) letter k) of the Labor Code, the base salary and all other components of salary income must be highlighted separately in the individual employment contract. In this regard, recurring benefits – such as performance bonuses or constant premiums – should be regulated by an additional act in order to comply with legal requirements and avoid the risk of their subsequent reclassification in court.

Clarification of the occasional nature

For benefits granted sporadically, it is important that they be accompanied by an internal communication specifying their exceptional or conditional nature.

Notification in case of modification or withdrawal

The discontinuation of a practice must be preceded by reasonable, justified, and transparent notification to employees in order to comply with the principle of good faith and transparency in labor relations.

Periodic internal audit

It is recommended that compensation policies and HR practices be reviewed periodically to identify any legal risks or inconsistencies in implementation.

Conclusions

The practice of granting benefits unilaterally offers employers significant managerial flexibility, but this must be exercised with caution. Even if the issue of customs is little debated in Romanian labor law, the repetition of these practices without formalization may unintentionally lead to the creation of legal obligations.

At the same time, in light of the provisions of the Labor Code, any component of remuneration that is regular in nature must be expressly mentioned in the individual employment contract or in an addendum, with distinct highlighting. Only such an approach ensures legal compliance and avoids the risk of undesirable legal obligations arising, given that benefits are no longer perceived as mere discretionary practices, but as contractual rights regulated accordingly, in accordance with the provisions of the Labor Code.

In other words, in order to avoid conflicts and maintain a predictable framework for labor relations, it is recommended that the regulation of employee benefits be clear and formal.

Our team is available to provide any clarifications regarding the granting, modification, or withdrawal of benefits in accordance with the legislation in force and the protection of the organization's interests.

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