Employer and bonus - do you think this is fair?

(48 Posts)
Fairornot Tue 30-Jul-13 19:33:32

Hi. I would really appreciate some honest views on this. I have name changed as might out myself. Apologies for the length.

Before maternity leave and a subsequent career break, I worked for a large blue chip company. A few years back, instead of a bonus, we were awarded shares. These vested this year and so I was hoping to sell them (approx value £3000-4000).

However, I have just discovered that I no longer own the shares as I am considered a 'bad leaver' by the company. When the shares were awarded, we were told that they could be taken away under certain conditions before the vesting date - eg in the case of dismissal for gross misconduct. Obviously, retirement and medical retirement etc were not part of this, though leaving to work for another (rival) company was. Essentially, if you were a good employee you'd be considered a 'good leaver' if you left for personal reasons - which I thought I had!

What upsets me is that I am currently on a three year career break, as is common for many of the women in my industry, and to be allowed to do this in the first place, you specifically have to be seen to be a so called 'good leaver', ie they wouldn't hesitate to re employ you. So to be told I'm a 'bad leaver' in this case is upsetting both personally and professionally.

FWIW, I joined said company as one of a select handful on a graduate management programme, had an exemplary career history, was highly regarded, excellent appraisals etc - and so it feels quite unfair that years later, I'm penalised when at the time, I'd worked bloody hard and was duly awarded with a good bonus.

So - I'd appreciate any views, good or bad! How can the company be happy enough with me to want me to go back once the career break is over, but not happy enough to honour a bonus agreement that was determined years back, pre-children?

AIBU to feel miffed? TIA.

Mia4 Tue 30-Jul-13 20:18:06

You need to check your contract and TOS OP. They could be trying to get through a loophole or take liberties or you may have agreed to this -however unknowing- when leaving if they misled you. I know someone who accidental waived redundancy pay due to clever and unfair wording on their contract renewal.

Citizens advice Beauro?

Bogeyface Tue 30-Jul-13 20:20:47

Anyway, leaving the SD thing aside. The OP was not informed that by taking this leave she was a bad leaver, she was verbally told that actually it was the opposite! So she has been mislead, and has not been informed at any point what she was risking when she took this leave.

Seems that this "leave" is actually a way to rob people of what they have earned whilst still being able to lay down the law of who she can work for and what she can do!

hermioneweasley Tue 30-Jul-13 20:24:52

Bogeyface, I understand the issues perfectly, thanks.

Indirect Sex discrimination occurs when an employer applies a provision, criterion or practice which disproportionately impacts on one sex over another. You then have to decide whether the PCP is a proportionate means of achieving a legitimate aim.

The PCP in this case is that she remains an employee at time of vesting, in order to reward medium term performance and incentivise retention.

Seems perfectly legitimate to me.

Fairornot Tue 30-Jul-13 20:25:50

Bogeyface - the indignant part of me definitely agrees with you! I also fail to see how - on a more global scale - I'd choose to go back to a company that makes such a big deal about being family friendly etc but then uses its discretion to take away a bonus that I earned years back - particularly when they know I'm keen to return and that I left to look after my child.

However, business head on, the bonus/share rules are not contractual and so I think they haven't necessarily broken any rules (???). Yes, I've been left with a bad taste, and this would affect my decision to go back at all (as who wants to feel as though they've been hard done by? I guess other women are in the same boat). This is a multi-million £ operation by the way, £4000 is peanuts! Equally, I know the company has been cost cutting any which way it can lately and so maybe I'm victim of that, rather than direct discrimination. Any legal eagles out there?

bearleftmonkeyright Tue 30-Jul-13 20:31:35

You need legal advice op, I cannot understand how they can take the shares away from you in these circumstances. You were awarded them years ago in lieu of a cash bonus? Now they are mysteriously.not yours? This stinks IMO.

hermioneweasley Tue 30-Jul-13 20:41:24

Bearleftmonkey - this is completely standard. There is nothing mysterious about it. She was awarded share options which mature over a period of time, provided she was an employee at the time they mature. She was not an employee at the time, she had resigned.

If she was explicitly advised that this would NOT be the case she may be able to complain to Hr for compensation. Otherwise it is miserable, crappy, unreasonable etc, but not suspicious or unlawful.

ParsingFancy Tue 30-Jul-13 20:42:18

Certainly don't throw in the towel until you know the precise definitions of good leaver/bad leaver for your particularly scheme.

It's really not possible for a random MN poster to state categorically you're a bad leaver - unless she knows who you were working for and is familiar with that scheme!

hermioneweasley Tue 30-Jul-13 20:44:43

Nobody has stated categorically, but I have a lot of experience of employee share option schemes, and the definitions don't vary much. Resignation is normally a bad leaver category.

Also, it seems the employer has already said this.

bearleftmonkeyright Tue 30-Jul-13 20:47:03

This might be better posted in legal. I hope you get somewhere op. Sounds like you are over a barrel, not surprised you are pissed off.

ParsingFancy Tue 30-Jul-13 20:47:25

"She resigned, therefore is a bad leaver under the scheme."

HollyBerryBush Tue 30-Jul-13 20:48:36

Have you actually contacted them to see if an administrative mistake has been made

ParsingFancy Tue 30-Jul-13 20:49:02

It's useful to hear of common scheme formats, but you can't go beyond that without knowing the details. Not least because OP's particular scheme and particular arrangement around maternity career breaks may be different.

ceeveebee Tue 30-Jul-13 20:54:44

I agree with hermione. I also have a lot of share scheme experience, and have never come across a scheme where someone resigning would be treated as a good leaver. Usually the circumstances are defined but then often there will be an ability for the company to exercise discretion to allow an employee to be treated as a good leaver. Without seeing the scheme rules it's not possible to be certain.

Have you asked your employer whether your case could be considered by the committee (although usually this would be done before you actually leave)?

ceeveebee Tue 30-Jul-13 20:55:38

Sorry, by "committee" I mean "remuneration committee".

catgirl1976 Tue 30-Jul-13 21:18:36

"Employees are entitled to SMP, rather than 'wages or salary' during maternity leave, providing they meet the qualifying conditions. This will not be affected by the new rules.

In theory, a bonus which falls due during maternity leave counts as 'wages or salary' and is therefore not payable. However, there have been some decisions of UK courts and the European Court of Justice which have complicated this position.

If the bonus relates to a period of time before the employee started maternity leave, then you must make the payment in full even if she is on maternity leave when the payment falls due.

If the bonus relates to a period of time which includes a period of maternity leave then you must make a payment on a proportionate or pro-rata basis to reflect the proportion of the time when the employee was:

working
on compulsory maternity leave the period immediately following the birth)
suspended on pregnancy or maternity grounds.

It does not matter whether the bonus is contractual or discretionary.

This may mean that you have to make an assessment of the employee's performance over a shorter period of time than would normally be the case.

Performance measures such as sales targets or achievement objectives are typically set at the beginning of the year on the assumption that the employee will be at work for the whole year. Where the payment of bonus is dependent on the employee achieving such targets/objectives, you need to adjust them downwards or judge what the employee's performance would have been had she been at work.

Where a bonus is not directly related to personal performance, the position is more complicated. In one case, concerning the relocation of Kays Catalogue from its original base in Worcester to a new site in Manchester, the employer offered a discretionary bonus to all employees who co-operated in ensuring an orderly and effective transfer and who remained in post until the relocation date. Two employees were on maternity leave throughout this time and did not receive the bonus.

According to the Employment Appeal Tribunal, it was sex discrimination not to provide the bonus. This case is at odds with the principle that women are not entitled to 'wages or salary' for maternity leave and it may have been wrongly decided. However, it is still binding on employment tribunals and so employers offering similar loyalty bonuses should pay them to women on maternity leave."

Fairornot Tue 30-Jul-13 21:27:40

Thank you all so much for your views.

I think it's fair to say that I wasn't aware that the career break agreement would invalidate the shares, though that could be put down to inconsistency in the use of the term 'good leaver' - ie its meaning was different in the share scheme from the meaning HR would give to it in terms of returning to employment. I expected to be a 'good leaver' in the share scheme's eyes, as well as from the HR perspective, and I was led to believe this would be the case by my manager (verbally). Obviously this hasn't happened.

I was already on the career break went the shares vested, not maternity leave (one followed the other) so I don't know if that affects anything. I suspect so.

I think I'm going to ask MNHQ to move this to legal.

ShellyBoobs Tue 30-Jul-13 21:31:41

I'm afraid you'd have been classed as a 'bad leaver' under my previous employer's share scheme, too, OP.

As unfair as it seems, I think a lot of schemes would classify your career break in that way.

Although of course you should seek qualified advice on your position, for sure.

catgirl - I think the issue relates to the 'career break' rather than maternity leave in OP's case, though?

enpanne Tue 30-Jul-13 21:37:57

Fact is you resigned, there is no 'technicality' about it.

The company have no way of knowing if you'll actually come back at all, so if you could go through this several year career break and still collect the share incentive, nobody would ever resign, they'd just go on 'career break', cash in the shares, and then tell the company they weren't coming back.

MogTheForgetfulCat Tue 30-Jul-13 21:44:27

I'm a lawyer, have done lots of work with share schemes and HermioneWeasley is absolutely right. it's impossible to be definitive without seeing the relevant docs, but everything that she's said is right. Yes, it sucks, and maybe there will be some discretion ovr the fact that you've only nominally resigned - worth asking - but otherwise it's likely that you will be a 'bad leaver' no matter how good an employee you were.

foreverondiet Tue 30-Jul-13 22:07:51

Where I work bad leaver means anything other than "redundancy or retirement (including due to ill health)". HR director said there would be discretion if someone leaving to be a carer (either for own children or parents etc) and not getting another job. If you are on a career break it sounds a bit unfair so do push back but they can describe bad leaver as they want.

Viviennemary Tue 30-Jul-13 22:19:36

This is quite a complicated situation. Usually career breaks don't involve resigning. And company shares are usually given as far as I know but some cannot be sold for a number of years usually five. But I've never heard of them being awarded and then taken back for whatever reason.

bearleftmonkeyright Wed 31-Jul-13 07:20:52

Can I ask why resign and not mat leave? Is this normal in your industry? The difference with your case I feel is there seems to be an agreement that you are returning. Have other women in your organization had the same problem? What does it say in policies and procedures about this issue? Finally, has anyone else resigned from the company and kept the shares?

Jinsei Wed 31-Jul-13 08:20:01

bear, I assume that the OP has had mat leave but wanted a longer break.

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