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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46182
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have a few issues with a former employer I would like

Customer Question

Hello, I have a few issues with a former employer I would like to discuss. I recently was awarded a bonus which no where in my contract states is only honored if I'm an employee. One the piece of paper confirming my bonus amount there was a new additional clause that said I would not receive bonus if under notice. I queried this with HR as this clause was not in my employment contract. They stated this was the industry norm but did not acknowledge that it wasn't in my contract. I also raised the concern that my role had a critical US regulatory deliverable in July and I was giving notice immediately to ensure a timely handover. I asked what their recommendation would be in a scenario like this in order to ensure bonus payment. There response was that if I wanted the bonus I should have waited even if it jeopardised the Regulatory compliance.
Submitted: 11 months ago.
Category: Law
Expert:  Ben Jones replied 11 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. What was the bonus based on?
Customer: replied 11 months ago.
Attention Ben Jones:Hi Ben,Thanks for the response. It was a merit based bonus based on my performance last year. I think they called it a discretionary bonus.
Expert:  Ben Jones replied 11 months ago.
So the condition of eligibility was presented to you only after you had met the criteria to become eligible for the bonus?
Customer: replied 11 months ago.
Hi Ben, that's correct. I have checked my original contract and it is does not contain such a clause. This clause was only referenced on the slip notifying me of my bonus. The contract does refer to further details in a 'UK rewards policy' however after querying for this policy no one was able to locate it.
Expert:  Ben Jones replied 11 months ago.
Thank you. 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, for example 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. 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. This is your basic legal position. I have more detailed advice for you in terms of the steps you can take to pursue this further if they fail to pay, 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, there I no extra cost and 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'
Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 11 months ago.
Thank you. Non-payment of binus potentially amounts to an unlawful deduction from wages, which is made illegal under the Employment Rights Act 1996. In order to try and resolve this, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow. If the employer does not return the money as requested, the following options are available:1. Employment Tribunal - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to: ***** ***** by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.
Customer: replied 11 months ago.
Thanks for all your help Ben. I dug out the bonus paper I mentioned and noticed an additional reference I'd like to run past you. In the line item section of my pay structure it refers to the bonus as 'variable' pay. This term isn't used in my contract as well. Does this have any impact?
Expert:  Ben Jones replied 11 months ago.
No it would not really change anything

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