To print this article, all you need is to be registered or login on Mondaq.com.
It’s the run-up to bonus season in the UK and there is a lot
to talk about. While the markets may have cooled down, the caps are
off! In a controversial move, regulators removed the regulatory cap
on banker’s bonuses on 31 October 2023.
Regardless of the industry sector you are in, if you are an
employer and are paying out healthy bonuses this year, how can you
ensure employees don’t take the money and run? The recent case
of Steel v Spencer Road LLP highlights how businesses can
use bonus clawback mechanisms to protect their interests.
Restraints of trade – back to basics
Blanket ‘restraints of trade’are unenforceable in the UK
unless they are: (i) protect a legitimate proprietary interest;
(ii) go no further than is necessary to protect that interest; and
(iii) not contrary to public interest.
The UK courts have generally shied away from categorically
defining exactly what a restraint of trade is and what it is not.
Helpfully, the judge in Steel v Spencer Road LLP confirmed
that a ‘Bonus clawback provision’is
not a restraint of trade and if drafted correctly,
Steel v Spencer Road LLP – the facts
Mr. Steel was employed at SR LLP. He received a basic salary of
£65,000 and an annual discretionary bonus. He received a
bonus of £187,500 in January 2022 (Bonus). He resigned from
SR LLP in February 2022. This Bonus was subject to a clawback
provision contained in his employment contract, which among other
things, required him to reimburse SR LLP for his Bonus if he left
within three months of the bonus payment date. After Mr. Steel
resigned, SR LLP sought to rely on the clawback provision and
subsequently served a statutory demand for the bonus to be repaid
(i.e., they tried to force him into bankruptcy when he failed to
pay back the Bonus).
Mr. Steel applied to the Insolvency and Companies Court (ICC)
contending that the bonus clawback provision amounted to an
“unreasonable restraint of trade”and was therefore
unenforceable against him. The ICC dismissed the application on the
basis that the provision did not actually prevent him from working
elsewhere. As a result, it did not amount to a restraint of trade.
On appeal, the High Court agreed with the ICC noting that, despite
a bonus or commission scheme being conditional on the employee
remaining at the firm for a set time, it merely operated as a
disincentive to the employee resigning. The fact that Mr. Steel
would have had to remain employed for six months (including his
notice period) after the bonus payment and that he also was subject
to post-termination restrictive covenants had no bearing on the
interpretation of the bonus clawback.
In our view, this case shows the utility of including bonus
clawback provisions either in the employment contract or in the
bonus award letter itself. However, a few words of caution: the
terms of the clawback need to be carefully considered (to avoid the
risk that it constitutes a penalty and is therefore invalid); the
drafting needs to be clear and concise to reflect those valid aims,
and finally — always consider the tax consequences of gross
or net repayment provisions.
*Maxime Chevot, a Litigation trainee, contributed to this
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
POPULAR ARTICLES ON: Employment and HR from United States