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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45327
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Employment. Discretionary bonus. I have been advised

Resolved Question:

Employment.
Discretionary bonus.
I have been advised I am not getting a bonus at all this year based on my performance.
However my letters exact wording is "this discretionary bonus is based on our great company result, and personal performance during 2015 as discussed in your driving success review.
The company website advertise the bonus as my letter
http://www.vwfs.co.uk/content/sites/vwcorporate/vwfs_co_uk/en/home/careers/why_join_us/rewards_and_benefits.html
My line manager tells me they have changed the wording of the bonus scheme and we are now excluded if we haven't made our targets, H R tell me they haven't changed the bonus criteria.
The web site says its partial, my notification letter says its partial.
Can they exclude people from any bonus if the letter also states it's based on company results?
Would the inconsistency count as being perverse?
I have spoken to HR and have asked them to consider how harsh it comes across in light of no bonus at all and will read their thoughts once I get back into work on Tuesday.
I admit I didn't meet my targets, but their approach is very inconsistent.
I'm asking them to look at it again for every employee who didn't get a bonus this year, which includes my line manager who tells me there is nothing I can do. It appears too harsh to me as everyone has contributed something.
Given that the bonus for some full time employees is at least £1500 it's not a small amount.
Everyone seems to think that this bonus is something we are not entitled to and it's wrong to criticise the company on its judgements.
What does the law say?
Submitted: 8 months ago.
Category: Law
Expert:  Ben Jones replied 8 months ago.
Hello i am a employment lawyer and will help you with this.
Customer: replied 8 months ago.
Ok I don't want the monthly subscription though
Expert:  Ben Jones replied 8 months ago.
No problem, I cannot see that you have subscribed anyway so it should not be an issue. Is there any evidence that the criteria were changed and if so were they communicated to you at all
Customer: replied 8 months ago.
Only that our results were calculated on our performance.
The web site and my letter is confusing me because that implies it has also something to do with how well the company does
Customer: replied 8 months ago.
HR tell me they haven't changed from last year ( performance only) but my letter and the company website say something else.It says it's partially based on performance.It's not consistant
Expert:  Ben Jones replied 8 months ago.
Thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Customer: replied 8 months ago.
My letter appears to reflect the website"Potential to earn annual bonus based partly on an individual’s personal contribution and partly on the company’s overall results."
Customer: replied 8 months ago.
HR tell me it's the same as last year ( performance only )
Expert:  Ben Jones replied 8 months ago.
Many thanks for your patience. The way this clause would be interpreted is that the eligibility of the bonus would depend on both the company’s performance AND your own performance. Failure to meet either could actually make you ineligible. So it is not necessarily going to be a case of either/or, rather it would be a case of meeting one and the other. Saying that, 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.It is an argument which is somewhat weakened though by having the condition that both company and personal performance must be met so be advised of that. In any event it is the only way to try and challenge it. This is your basic legal position. I have more detailed advice for you in terms of the options you have to take the matter further, 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: 45327
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 8 months ago.
Ok thanksYou have answered my questionMany thanks
Expert:  Ben Jones replied 8 months ago.
You are welcome. Let me know if you still want to take this further and make a claim for the bonus and I can outline the steps if needed

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