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Question about changes to Bonus


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Hi,

 

Today my employeer sent an email explaining that as of this month part of my bonus will be related to my selling ability. This is a major point of contention for me as I work in technical support not sales and I don't see it as reasonable part of my KPIs. In addition recent developments in my role has made it less likely for me to get these oppertunities.

 

Previously I have had this conversation with both a HR representative and my manager. During this I was informed by my manager that I would never have part of my bonus decided by sales.

 

I have also checked all of my paper work and can see no terms that allow them to change the bonus (admittedly there are two documents I'm waiting for from HR). While the values at steake are small there is a principle here and also if I do not raise my objecions I worry about the legal implications further down the line (implied acceptance).

 

 

What are yor thoughts? Do I have a case to argue?

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You have already outlined your case pretty well and this needs to be communicated to your employer.

 

Refer to assurances given by your Manager, entitlement to bonus (either as a written contractual term or otherwise implied by Custom & Practice, unfair distribution of bonus due to limited selling opportunities when compared with others and the change to your T&Cs without consultation. Submit this as a grievance which will prompt a discussion on the subject.

 

In practice, your options are limited. There is indeed a principle, and it is unfair to limit an employee's wages when you do not enjoy the same opportunity as others for enhancement. If you can prove entitlement to the bonus, then it could be classed as an Unlawful Deduction, however this would involve threats (and possibly having to follow it through) of Tribunal action to rule on this. Whilst it may get you the bonus reinstated, it also could potentially damage the relationship with your employer, so you may also wish to consider an exit strategy. Sadly the current economic environment is making employers seek ways in which to improve performance or profitability, and you would seem to be a casualty of this - that isn't to say it is right, but it is certainly not unusual, and you may wish to consider ALL options before wading in with too many threats, although it is absolutely right to lodge a grievance based on the promises that were originally made to you.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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Thanks ever so much for your help, I know it sounded like common sense but sometimes with employment law!!!

 

While I agree it is not the best time to start a fight, what I'm worried about is implied acceptance - if I do not make a stand now where do I stand in 6 months when they make it a higher percentage? In addition the company wanted me to make amendments to my contract which constituted to be extra work with the only recompense being bonus related. Luckily I refused that however I know a few people who have.

 

Could you fill me in on what the legal implications are of saying nothing?

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The implications are that by saying nothing you may be deemed to have accepted the change - working without complaint would change your contract by Custom and Practice in the employer's favour. A grievance would record the fact that you are dissatisfied, but if the grievance is dismissed you would still be left in the position of what to do next!

 

A change in contract can be forced through ultimately and you then have the decision to make over whether to complain to a Tribunal or not (and would have to lodge the claim within 3 months). The employer could dismiss you from your old contract and immediately offer re-employment on the new Terms, whereby you could resign and claim Constructive Dismissal, but don't even go there. It isn't viable, is almost impossible to win, and carries very little reward even if successful.

 

Try the grievance and hope that it works. If not, then either accept defeat or make a stand whilst looking for a new job!

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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Saying nothing is consent - it's as simple as that. But you need to also be aware that refusing does not necessarily mean that you would win a case in employment law terms. As Sidewinder has already indicated, many employers are looking at ways to make savings, and even contractual terms (and you need to check your policy on bonuses very carefully - many are specifcially excluded from contractual terms) can be lawfully varied. If the employer wishes to vary a contractual term, they must consult with employees affected - but that does not mean that they have to agree to your views. If an employee then refuses to agree, they can impose the variation by serving notice on your existing contract, and offering you a new contract containing the new terms to run immediately from the termination of the old one (with continuous service etc intact). If you do not accept this contract you are deemed in law to have resigned, and must then prove that this was an unfair dismissal. That is not as easy as it sounds, especially if the financial loss is fairly minor. Tribunals tend towards supporting employers in such matters unless the change is significant - and nobody could give you a better answer than that because there is no definitive answer to what that entails. I have seen tribunals rule 10% cuts in wages as fair! The reality is that even knowing all the circumstances it is impossible to give a definitive view on what a tribunal would or would not accept in these circumstances, and many factors are considered in coming to a view - including whether the majority of employees have accepted any change, whether there are business or other good causes for the change, and, quite frankly, who is on the panel at the tribunal (anyone who thinks that the individual views of judges does not sway argument where there are no clear cut rules is dreaming!).

 

If you are inclined to refuse and make a stand that forces the employer to impose changes, you would be well advised to obtain detailed legal advice before refusing a new contract - and to bear in mind that even that would not guarantee that you would win, as it could only give you a probability of winning or loosing and not a clearly defined answer.

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Hi all,

 

Do you have any good websites if they do offer me a new contract that I wish to refuse?

 

Sorry in addition my employer has asked for a bit of time as their HR rep is off ill - how does this effect things? I'm inclined to be nice and hold back but I do not wish to loose any rights should it come to a tribunal

 

Thanks

-Howard Webb

Edited by howski
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