Mr. D McCann v Redpath Construction Limited and 4 others — 2023

Mr D McCann began working for Redpath Construction Limited as a Project Manager on 26 August 2019. His contract said the company incentive scheme was not a contractual bonus scheme and that payment was discretionary. In June 2022 Mr Sloan emailed him a bonus calculation stating that he would receive a gross non-retained bonus of £4,906, to be paid in three instalments of £1,600 in June, £1,600 in July and £1,706 in August, and a further gross retention bonus of £1,100 subject to the release and payment of retention monies by the client.

The tribunal found that the project bonus scheme was a non-contractual, discretionary scheme. It accepted that the respondent had varied some of the scheme's terms in practice over time and had told the claimant on 28 June 2022 that he would receive the non-retained bonus on the stated instalment basis. It rejected the respondent's argument that paragraph 8 of the scheme meant no further instalments were payable after resignation, holding that the July and August instalments were not "further bonuses" but instalments of a bonus already notified to the claimant. It also found that, by 7 July 2022, the IRH final account had in fact been agreed and paid, so the bonus event had occurred before the later instalment dates.

On that basis, the tribunal held that the unpaid July and August instalments were wages properly payable within section 13 of the Employment Rights Act 1996 and that their non-payment was a series of unlawful deductions. It ordered the respondent to pay the gross sum of £3,306, subject to deduction of any tax and employee National Insurance required by law and remittance of those deductions to HMRC with written evidence to the claimant. The separate claim for breach of contract in relation to the retention bonus was not determined on its merits because the tribunal held that it lacked jurisdiction: the bonus was contingent on future release of retention funds and was not due, or outstanding, when employment ended on 12 August 2022.