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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47388
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have handed my notice into my employer in December and I am on a 3 month notice period.

Resolved Question:

I have handed my notice into my employer in December and I am on a 3 month notice period.
In my December pay I received my annual retention bonus (paid in arrears period November to November). In the FAQs of the documentation I signed when agreed to the bonus scheme it says that my employer can request the bonus is paid back to 12 months after it is paid, but the letter I signed says that it is paid in arrears worked. I therefore understood the claim back clause to be if I did something during the period of performance bonus that would impact future work.
There are 9 staff members who have resigned and who the employer is trying to claim the money back from. My employer has never previously enforced this rule and despite asking they are not able to provide me a policy which states how they decide whether to claim the bonus back.
It feels like we are being penalised the company, and that claiming back the money is retalitory.
Do I have
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

, my name is ***** ***** it is my pleasure to assist you with your question today. Was this bonus based on your performance at all or is it paid regardless just employed by the company?

Customer:

It was paid all employees working in a certain office. The bonus was paid ones reputation with the customer, not well one delivered. The only way I would have made myself ineligible bonus would be if I I were to have handed my notice in during the period of performance.

Ben Jones :

How are they claiming it back - are they withholding it from wages owed or are they taking the employees to court?

Customer:

As yet they have not said anything more than they are going to claim it back. I know that they have withheld some other peoples wages who have left and others have entered discussions .

Ben Jones :

When it comes to workplace bonuses, there are two main types: contractual or discretionary. There can be an overlap where a contractual term gives the employer discretion over payment, or there can also be further sub-categories, performance-related bonuses or bonuses payable subject to other conditions. What is certain is that the legal issue of bonus eligibility is a rather complex matter and would mainly be subject to interpretation of individual circumstances and the wording of the clauses in question.

A common example is a bonus clause which is contractual but which gives the employer the discretion to decide whether it would be payable or not, or whether it can be clawed back. This is also a situation which would cause most disputes between employee and employer. Whilst at first glance this may give the employer full discretion as to whether the bonus should be paid or not, this will not always be the case.

So in any event this can be a contentious issue – not something in black and white which you can point the employer to and have a fireproof case to prevent the clawing back of the bonus. What would serve in your defence is that this was paid in arrears period which has already elapsed, however as the payment was still made on the condition that it can be reclaimed within 12 months, it would be assumed that you received it based on that condition.

What is certain though is that the employer cannot withhold this amount from your wages unless they have a specific clause allowing them to do so (they can’t just say it can be reclaimed, they must specifically state that it can be deducted from your pay and you must have been aware of this, such as by having it included in your contract or signed a separate agreement acknowledging that).


Customer:

The last paragraph gives me a lot of encouragement. We are paid in advance, which would cause me significant financial difficulty if they were to claim it back from my salary (i.e. it would me me working !).

Customer:

Would you suggest that I engage with an employment lawyer to review my case?

Customer:

I also have correspondence (e-mails) from the old Programme manager setting out that they (my employer) would not claim back the bonus unless they could show that my actions during the period of performance had damaged my professional reputation and thus there capability to use me with the customer. Is this eligible?

Ben Jones :

Yes it certainly can be something you can use in your defence if it was communicated to you by the employer, or at least someone in authority. As to getting an employment lawyer whilst that is an option it may not be necessary until the employer actually takes formal steps to try and recover that

Customer:

Brilliant - thank you Ben advice.

Customer:

I will wait to make the next move and then decide whether I go to employment tribunal based on that.

Ben Jones :

you are welcome, all the best and hope this gets resolved to your satisfaction

Ben Jones and other Employment Law Specialists are ready to help you

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