Before a decision is made to stop providing bonuses to employees it should first be established if the bonus is contractual or discretionary.
Discretionary benefits, which are monetary awards that are provided to the employee purely at the employer’s discretion and have no set qualifying criteria, can be removed or amended as and when the employer wants. In contrast, contractual benefits are paid in accordance with the terms of an employment contract and therefore cannot be changed or removed without agreement from the employee.”
If a bonus is a contractual entitlement, employers will need to get employees’ agreement before it can be amended or withdrawn; this is the case with any contractual entitlement. Obtaining agreement is likely to involve a period of consultation with the employee in order to discuss why the company can no longer continue to provide it. Because of the obvious detrimental impact on employees, it can be difficult to get them to agree and an employer may consider enforcing the change by dismissing employees on their current terms and re-engaging them with the change enacted. However, as this would involve a dismissal, the employer must be able to demonstrate that they have a good business reason for removing the bonus to avoid an unfair dismissal claim.
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The situation is less complicated for new employees, who can simply be provided with a set of terms and conditions which do not include a bonus entitlement.
The problem between discretionary and contractual bonus schemes is that a scheme may be labelled discretionary but, because of the way it has been operated, is not. For example, a bonus may start off discretionary but may become an implied term in a contract of employment if the employee can demonstrate that payments have been made regularly over a number of years and have come to be expected, though this will depend upon the specific facts of the case. Employers should review the scheme to see how regular the bonus has been distributed and if there have been any occasions over previous years where it has not been.
Going forward, they can also attempt to avoid this by clearly stating in the contract that benefits form part of a discretionary bonus scheme, outlining that the employer reserves the right not to award it and that it can be withdrawn at any time.
Interested in employee rewards? We recommend this Reward Strategies to Deliver Business Objectives training day.
Clare Parkinson has over 20 years’ experience in the Croner Reward business. As Business Manager, Clare leads a team of Reward Consultants who specialise in the delivery of pay and grading related advice, including tailored pay benchmarking and gender pay reports.
Over the years, Clare has contributed to various industry publications on topics such as gender pay, executive remuneration and market pay trends.
