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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I want to resign to move companies after bad treatment at current

Customer Question

I want to resign to move companies after bad treatment at current employer.
I was paid commission for a deal I closed last month, following a grievance
I raised about the value and calculation, a discretionary "top up" payment has been agreed
to be paid in my salary in Dec but I need to resign before then
to secure my new role. My bonus scheme stipulates that I don't qualify for payments if I on notice but this value should by rights have been paid in Nov - where do I stand?
I feel I should be able to resign and not have the bonus payment revoked but it's a large sum and I want advice before risking it.
Thanks
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello donut have the full wording of the clause?
Customer: replied 1 year ago.
It says at the end of the scheme
"Please be aware that, to recurve any payment of the Sales Incentive plan or Group Sales Plan, you must be employed within the [employer] group and not working a period of notice at the date at which the incentive is paid.I have had the commission payment, this dec payment is a "goodwill" "discretionary" payment
Expert:  Ben Jones replied 1 year ago.
Thanks for clarifying and sorry I could not reply earlier, I was already on the road by the time you had replied.
When it comes to bonus or commission payments, they would be subject to any contractual provisions which govern them. This means that the employer can introduce specific clauses which deal with how these are paid and an employee’ eligibility to receive them.
A common clause deals with payment if the employee is either no longer employed or under notice at the time a bonus becomes payable. They may have earned it during an earlier period and met all criteria then but fail at the final hurdle. These clauses are legal as long as they are clear and have been communicated to the employee.
In your case the policy deals with payments made under the Sales Incentive Plan and you need to consider if this payment falls within that. I know it was a discretionary payment but was it made as part of this plan and to top up payments made under it? If so, then it will likely still be subject to this clause and the employer could refuse paying it.
There is of course nothing stopping you from trying to pursue this and even putting some pressure on them to try and make them pay but if they refuse then the only way is to go to court and there are risks involved.
This is your basic legal position. I have more detailed advice for you in terms of the next steps you can take to put some pressure on them and even prepare for more formal action, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46182
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 1 year ago.
Thank you that's really helpful - I am keen to ensure I word my response in the right way and not create any barriers for further action should i need them. I will copy and paste the email I need to respond to so you can review - thanks a lot!
Customer: replied 1 year ago.
Sarah,
Bob had a review of the [client name ommitted] Sales Commission on Thursday morning with Mike, Tom, Hazel & Jo W. Please find below an outline of the payment that you will receive and the details of the calculation:
1. The payment amount is based on the following,
a. While the 2015 scheme would have entitled you to a total of £46,210, as a goodwill gesture, it has been decided to use the midpoint of the 2014 & 2015 schemes to calculate the payment amount.
b. Based on this and given the final payment is at the discretion of the Divisional FD, the payment has been increased from £46,210 (the 2015 scheme) to £71,748.
c. It assumes a split for two key individuals (yourself being one) of 50/50 for the Sales & Solutions Architect %’s.
2. In summary, the total payable will be £71,748.
a. 70% will be paid upfront (note £32,347 of this has been paid in November with the remainder in December ‘15)
b. The remaining 30% in 12 months in line with the 2015 scheme
Please feel free to either call or email for further clarity if required. To that end, I have copied in Tom/Jo to ensure we provide you with timely answers to any questions you may have.
Kind Regards
Expert:  Ben Jones replied 1 year ago.
Hello, as it would appear the payment was in line with the scheme and subject to the payment terms, the employer could potentially withhold it as you do not meet the necessary criteria. In practice a court or tribunal would wish to be convinced that the employee was made fully aware of the eligibility provisions before tendering their resignation. For example, in the case of Noble Enterprises the employer claimed that the employee was not entitled to a bonus in respect of the previous year when he resigned and left just a few days short of the payment date. The tribunal found that the scheme, which was not recorded in writing, was imprecise. In particular, the provision which purportedly barred the employee from being paid his bonus had not been made clear and had he been aware that he must remain in employment until the payment date, he would likely not have left until after that date. So you have to see if these rules were clear and in writing and you were made aware of them. Also the reasons for leaving before the payment date – here you have stated it is to do with securing the new job, so even if you knew that you are missing out as a result, you may not have been able to change that anyway so that will also go against you. These are the factors you need to consider.
Customer: replied 1 year ago.
Hi. The clause in the commission scheme is very clear as you can see.
I am leaving due to the mistrust with my employer, this isn't the first commission I have had had disputes on, several previously were severely reduced with no logic or communication I just didn't appreciate my rights and didn't formally challenge in the way I have done this time. I would be resigning today if it weren't for the timing of this top up. I was thinking about asking them to Bacs transfer it rather than waiting for dec payroll, considering that the payment in Nov should have been correct (they haven't directly acknowledged it was incorrect but surely the discretionary payment and their acceptance that they needed to uplift it by default is acknowledgement Nov should have been higher)
I am just not sure how to word that in response to the email above - I need to resign this week to prevent me losing the opportunity I desperately need to get out of this business for the good of my health and sanity! But I feel how I word this response will dictate how likely it is that I still get this top up payment.
They haven't reiterated the terms of the commission scheme on their email nor said it was subject to any factors which could be a loophole to prevent them retracting it if I'm on notice?
If you could advise how to structure my email response to their email above I would really appreciate it and I think that will close my question
Many Thanks!
Expert:  Ben Jones replied 1 year ago.
OK, so 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. 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. If the eligibility to a bonus is based on performance criteria then first of all if an employer is required to form an opinion of an employee's performance they must do so in good faith and be fair. Any other performance criteria would usually be determined based on qualitative data. Assuming the performance conditions have been met, an employer will rarely be able to refuse payment of the bonus as doing so would be acting in bad faith and considered unfair. So this is an example where the employer's discretion is removed once the relevant eligibility conditions have been satisfied. It follows that even though a bonus clause may be described as being entirely at the employer's discretion, there are circumstances, mainly in performance-based eligibility, where this discretion is removed and the bonus would automatically become payable if the eligibility criteria have been met. So you can use the above in your response but remember that you cannot force them to pay regardless of what you say and that means the only way to take it further would be through court. Hope this clarifies?

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