How to make a claim for non-payment of bonuses and incentive schemes

bonusBonuses are payments that you get in addition to your regular pay. They are usually linked to your personal performance, your teams performance or the organisations overall performance.   Bonus and incentive schemes can be discretionary or contractual. A discretionary bonus scheme will give you the right to be considered for a bonus or incentive payment but it doesn’t mean that you will automatically receive one. Your entitlement to a bonus should be stated in your written statement of employment particulars.

If your right to a bonus is not written down, it can be implied if it has previously been paid on the basis of custom and practice. In the case of Frischers Ltd v Taylor 1979 [EAT], a Christmas bonus had been paid to employees for several years. Frischers Limited said that it had the discretion to withhold payment of the bonus. The Employment Appeal Tribunal decided that through years of custom and practice there was an implied term that the bonus would be paid. Even if the bonus schemes has discretionary elements, it may still be enforceable. In Small and others v Boots Company Plc. and Another [2009] the EAT said that simply describing a bonus scheme as discretionary does not give the employer the right not to pay it.

Pregnancy and maternity leave

The Equality Act 2010 protects pregnant women and those on maternity leave when it comes to contractual pay and bonuses.

 

What if your employer does not pay your bonus?

Section 27 ERA 1996 defines wages as , “any sums payable to the worker by his employer in connection with his employment, including any fee, bonus, commission, holiday pay or other emolument referable to his employment“. This applies whether or not it is mentioned in the employment contract and includes bonuses, sales commission and performance related pay.  If your employer does not pay your bonus, or pays less than is due it would be an unauthorised deduction from wages. A deduction is when you are paid less than the total amount that you are due. The law provides the criteria for when a deduction from your wages or salary can be made lawfully by your employer. Any situation that falls outside of the criteria will be an unlawful deduction, and you will have the right to pursue a claim in the employment tribunal.

You must make a claim for a specific amount of money in your grievance. If you are not sure about the amount, then your claim does not fall under an unlawful deduction under the Employment Rights Act 1996, and you must make a claim for breach of contract instead, or make your claim in the county court. Under the Deduction from Wages (Limitation) Regulations 2014 claims for deductions from wages are limited to two years from the date of the deduction.

If your employer makes any unauthorised deductions from these payments you will have a claim in the employment tribunal or county court.

If you want to make a claim for a bonus payment as an unauthorised deduction of wages, you should make sure that you know the exact amount of money you are claiming. If you are making a claim for a discretionary bonus that does not have a real formula for calculating the amount, you should make a breach of contract claim instead.

 

How to make a claim for non-payment of your bonus

You must start of by raising a grievance, and consider that your grievance could end up before an employment tribunal and take account of the time limits for an employment tribunal claim. Time limits could expire before the end of the grievance and appeal procedure. The normal time limit for making a claim in most employment cases is three months less one day. Calculate your time limits including weekends and bank holidays and remember that you must go through free ACAS Early Conciliation before submitting a tribunal claim.

 

Resources available

How to Write a Grievance About Unauthorised Deductions from Your Wages or Salary

How to Write a Grievance That Gets You What You Want

How to Write a Grievance About Bullying and Harassment at Work

How to Write a Grievance About Changes to Your Employment Contract

How to Write a Grievance About the Behaviour of a Colleague, Manager or Supervisor

How to write a Grievance about discrimination at work

 

Disciplinary action and capability

Discrimination at work

Surviving a workplace suspension

Health and Safety Dismissal

How to fight dismissal on Probation

How to survive a criminal charge, conviction or caution at work

Social Media and Unfair Dismissal

Surviving a disciplinary investigation at work

Surviving Capability and Performance Management

The Disciplinary Hearing

 

ET1: Breach of Contract

ET1: Non-Payment of Holiday Pay on Termination

ET1: Non-Payment of Holiday Pay whilst still employed

DOCUMENTS, FORMS AND LETTER TEMPLATES

 

 

 

 

 

Best of the web

Bonus Payments – Equality and Human Rights Commission

Expenses and benefits – Bonuses

Understanding your pay – performance related pay

Christmas bonuses

Tax on benefits in kind

 

Disclaimer 

This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided free of charge for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this update. Further specialist advice should be taken before relying on the contents of this summary. No part of this summary may be used, reproduced, stored in a retrieval system or transmitted in any form without the prior permission of Employee Rescue Ltd.

 

Case Study

Westlake v ZSL London Zoo (2015) An employment tribunal ruled that a London Zoo meerkat handler who got into a Christmas party fight with a monkey specialist over their love rivalry for a llama keeper was unfairly dismissed, however she received nothing in compensation.  The employment tribunal said that two zookeepers who got into a fight at London Zoo’s Christmas party should have received the same disciplinary sanction. At London Zoo’s Christmas party, zookeeper Ms Westlake got into a fight with a colleague, Ms Sanders. The fight appeared to originate over another zookeeper Mr Davies, Sanders’ former boyfriend who was... Read More
Westlake v ZSL London Zoo (2015) An employment tribunal ruled that a London Zoo meerkat handler who got into a…Meerkats v Monkeys
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