Review bonus schemes to avoid costly disputes

The talent war is hotting up so is it time to look again at the rewards on offer to your staff? According to the latest data, 3 in 4 FTSE companies have cited labour shortages or staff retention issues as a principal risk to their business in the last reporting period so what can HR do to help? We will come on to that shortly.

This is in the news after publication of a report by think-tank Autonomy and corporate governance consultancy Pensions & Investments Research Consultants. It is called ‘A Shortage of Vision’ and says despite workforce planning becoming a board-level priority, companies’ responses to labour shortages are not working. Short-term retention bonuses and targeted recruitment drives are described as ‘sticking plasters’. What is needed, they say, is a longer term strategic approach. 

Personnel Today reports on this with their headline ‘Pay rises and better in-work benefits needed to retain staff’. The message is the labour shortage will worsen unless organisations offer staff desirable incentives to keep them, including pay rises and better working hours. So whilst many firms have been forced to cut pay and bonuses in light of the pandemic, that picture is changing, the economy is picking up and now is the time to ‘press the re-set button’.

We agree, and a number of our clients are doing just that, reviewing their reward packages and, in particular, their bonus schemes. There are chiefly two drivers for doing that. First, the obvious point, to attract and retain staff with a scheme that incentivises and rewards them.  But secondly, to avoid costly disputes caused by schemes that are seen to be operating unfairly, causing unhappy staff to leave and find jobs elsewhere. 

As we highlighted back in November, the number of disputes has been rising sharply during the pandemic - especially disputes around discretionary bonus schemes. This latest report suggests that picture is set to continue as we go into 2022 unless employers take time to check their scheme actually does what it’s meant to , and check that managers responsible for its operation are properly trained. Recognising that, to help clients Pinsent Masons has been working on a new product that may be of interest to HR. Chris Evans has been involved in its development and he joined me by phone from the London office to discuss it: 

Chris Evans: “So what we've developed is a product which takes an employer's bonus scheme and asks a number of pertinent questions about how they implement that bonus scheme to identify whether there are any kind of red flag risks that they ought to be addressing now. So what we often see with bonus schemes is that they either very historic or haven't been looked out for a while and most years there isn't a problem because it's a very good thing the staff are given bonuses but in circumstances where there either are bonuses not being paid out, or bonuses are less than employees expect, that's very often where we see the challenge and what we're looking to do is to pre-empt those challenges by ensuring that employer’s bonus schemes, and the processes they follow through to implement them, are fit for purpose and they're going to send the best possible chance of defending any such claim if one arises.”

Joe Glavina: “I talked recently to the share plans team about this and the problems they sometimes see around discretionary bonuses when people didn’t get the pay-outs they were expecting. It can be very costly for the employer if they’ve got it wrong.”

Chris Evans: “Absolutely, so the costs of getting the bonus scheme wrong, or the implementation wrong, can be extremely high for an employer. One example is a case I did relatively recently was there was a dispute with an employee who was exiting as to the amount of the bonus and the bonus schemes rules were drafted in such a way that there was a level of ambiguity. The ambiguity meant that this individual was able to come to a figure which exceeded a million pounds whereas on our interpretation of the bonus scheme it was far less, around the £100,000 mark. So you could end up in a situation because of the value of the claim, particularly that claim, where you could end up in the High Court and the legal fees alone associated with that would run into the tens, if not hundreds of thousands of pounds. So what we are looking to do here is try and ensure that the bonus scheme is fit for purpose so that when you are presented with a challenge like that you can clearly turn around and say no, the bonus rules are clear, there's an element of discretion here, yes, but we're not acting irrationally when exercising that discretion.”

Joe Glavina: “I can imagine some managers struggling with that. So they might see a decision not to pay a bonus, or to pay a lesser amount, as perfectly rational, but the employee, and perhaps ultimately a court, might see it differently. What’s your message to HR on handling that?” 

Chris Evans: “Yes, I think what is a helpful takeaway for employers is that if you are paying some bonus, and there's an element of true discretion if I can put it that way, so you're not fettered by the contract as to what you can and can't take into account, and you apply the appropriate categories as part of your discretion, as part of your decision making, then a court should be reticent to interfere and there is good case law authority which goes to that. The difficulty, however, which I say is that you very often have ancillary claims associated with a bonus dispute. So there may be a discrimination claim or there may be a whistleblowing complaint, for example, and what we typically see is that an individual will claim that the manager who made the decision about the bonus has subjected them to some form of discriminatory treatment, for example, and that give rise to a significant concern because if they are the ones making that decision, and if there is a finding of discrimination, a court would be quite alive to the fact that actually any discretion which has been exercised could be irrational in circumstances where the decision maker is found to be discriminatory. Now, this is always why I recommend there to be at least a review process as part of a bonus decision making exercise. So even if the manager identifies what bonus they think it's appropriate they should document why, first of all, so we've got an audit trail, but that needs to be independently audited by another manager. So at least then if we get into a dispute we can say, well, yes you may have a complaint against your manager for discrimination, or for whistleblowing detriment or whatever it may be, but the exercise of discretion around the bonus has been independently verified and the second manager has not been tainted, even on your own account, by this alleged discrimination. So again, it just gives us more ammunition to go into litigation, if indeed it arises, so that we can properly defend these claims.”

One of the reasons this issue is in the news at the moment is down to the state of the market with employers striving to do all they can to attract and retain talent. Back in November share plans specialist James Sullivan Taylor talked to this programme about how that is leading to a rise on bonus disputes and what employers can do to avoid the common pitfalls. That programme is ‘Rise in bonus disputes as firms look to incentivise staff’ and is available for viewing now from the Outlaw website.