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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47914
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi sir I receive a bonus every 6 months related to selected

Resolved Question:

Hi sir

I receive a bonus every 6 months related to selected KPI's and have far exceeded all expectations and now my bonus is well in excess of 100% more than was originally anticipated. Obviously my employer is now insisting they are recalculated and changed I live in the real world and understand that I maybe should except a small change but the amount they are expecting I believe is just too much. This is the second time my bonus has been changed owing to over performing and I now believe it is not fare. My question is, Have I the right to refuse or do I have to except what is offered? I would like to resolve this without causing any animosity between both of us.
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long you have worked there.

Customer:

Hi Ben

Customer:

I have been working for this employer for 7 years

Customer:

Hi Ben

Customer:

I really require an answer to my query and soon, I was not aware when I paid for the answer that it would not be immediate. My interpretation of "ASAP" as it clearly states on your web page is not going to meetings etc. If you a busy with clients why was I not put in the care of someone who has the time to dedicate to what is essentially a paying customer.

Expert:  Ben Jones replied 4 years ago.
Thank you for your patience. Just to clarify, all experts on here are practicing lawyers who will have other engagements and will dedicate their time to this service whenever possible, we are not full time employees of this site.

Returning to your question, the matter of bonuses is an issue that will depend on the wording of any specific bonus clauses that exist in your contract. The entitlement to a bonus is a purely contractual matter and as such the clauses that deal with this will be the most important reference.

Usually, if a bonus is guaranteed the employer will have little choice over whether to pay it or not as long a he conditions have been satisfied. However it is often the case that a bonus clauses discretionary and leaves the employer to decide whether a onus should be paid.

Case law has been relatively clear in that respect and the accepted principles are that if there is a discretionary clause which requires the employee to meet certain criteria or meet performance targets, then assuming the required performance/criteria have been achieved, the employer would have little choice in the matter and would be obliged to pay the employee their bonus. Failing to do so would be a breach of the implied term of trust and confidence and contrary to established employment law principles. These are arguments that you can raise with the employer but unfortunately no one can guarantee that they will actually pay as they may be set in their minds about this and refuse to entertain any negotiation. If that's the case then unfortunately court is your only way to try and force anything out of them.

Thank you again for your patience and let me know if you need me to clarify anything.
Customer: replied 4 years ago.


For Ben Jones


 


Ben the issue is not with the payment, as I have received all payments due, The question is, Can my employer change my targets which my bonus has been paid on effectively moving the goal posts, Can I refuse the change that has been put to me or do I have to accept the new targets which if put in place will drastically change this years income?


Many Thanks

Expert:  Ben Jones replied 4 years ago.
Hello Frank, an employer can change targets and performance requirements as long as these were not initially contractually binding. For example, if your contract contained these specific targets and did not have any provisions allowing their changes, any proposed changes would amount to a change to your contract and you can challenge these. However, if the targets went specific in the contract and were not of a contractual nature, the employer can vary these depending on company performance and needs. Hope this clarifies
Customer: replied 4 years ago.

Ben

Just to clarify I had agreed on a bonus 3 years ago with my employer based on achieving set targets and now have exceeded these far from what was expected. I had at the time believed this was set in stone albeit verbal. Now I have been asked to accept a new set of targets which will reduce my annual income drastically I don't want to accept this, Can they force this on me?

Expert:  Ben Jones replied 4 years ago.
It depends on whether this has become a contractually binding clause or not. This was aged verbally and nothing was set in writing so arguing it was contractually binding may not necessarily be easy.

There is a principle in employment law where terms may become implied into an employment contract by ‘custom and practice’. This makes them contractually binding even if they are not written down anywhere. This area of law is rather complex and it is usually only down to the tribunals and courts to establish with certainty if something has become an implied term. Nevertheless, it does not prevent employees from directly raising this argument with their employers.

The basic requirement for implying terms is the presumed intention of the parties, in other words - did the employer and employee intend for the term(s) in question to be treated as contractual. In general, a practice would need to have been clearly communicated and consistently applied for a substantial period of time before it can be considered an implied contractual term. Therefore, something that is uncertain, has not been applied consistently or has just been around for a few months is unlikely to qualify.

You may tell the employer that you believe the term or practice you are relying on has been implied into the contract through 'custom and practice' and see what they say. They could of course deny that and refuse to discuss the matter and if that is the case then you can only realistically challenge this by taking your case to an employment tribunal or the county court.
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