KB-2023-003510 - [2025] EWHC 1755 (KB)

The next matter that I have to deal with concerns item 3 in the Schedule. So far as this issue is concerned, in my judgment the Employment Tribunal dealt with it at paragraphs 45 and 46 of their detailed reserved judgment. Paragraph 45 starts off by stating that the Claimant asserts that he agreed a permanent variation to his bonus terms orally with Mr Shah from 50 per cent to 100 per cent and this is what the bonus payment agreed in December 2016 was for. The Claimant’s case before the Tribunal was that this was not a one-off discretionary bonus but an agreed increase to his bonus percentage. The Tribunal goes on to consider the evidence in front of the Tribunal in relation to that matter and says at the end of paragraph 46:

“The Tribunal found on the basis of the Claimant’s own assertions that the bonus terms were not revised to 100 per cent on a permanent basis but remained at 50 per cent. The election to pay an additional 50 per cent in December 2016 was discretionary, based on the support for the legal case."

The reference in those sentences to the Claimant’s own assertions is a reference, as I understand it, to contemporary documents that are referred to in paragraph 46 of the Tribunal’s judgment. The explanation for such a reference is that that was not the Claimant’s case in front of the Tribunal in other respects which I will come on to.

So the issue between the parties on this before me is: was this a matter that was properly before the Tribunal and was dealt with by the Tribunal in such a way that it would be wrong and an abuse for the Claimant to ask the High Court to revisit the same topic; or is it, as Mr Dowding, the Claimant, contends, something that was not in front of the Tribunal for decision, that they should not have embarked on deciding, and in any event, as he would suggest, to the extent, that they did decide it, they did not apply the correct legal principles, and particularly principles of contract law?

In determining that issue, it seems to me that one has to look at the material documents. The Particulars of Claim in front of the Tribunal, which again, were very detailed, contained at paragraphs 4 and 5, under the heading "Subsequent variations", a claim that the bonus was agreed orally between Mr Shah and the Claimant to be increased to £110,000 and that his bonus would be increased to 100 per cent of his salary. At paragraph 11 of the Particulars of Claim, there is a complaint made about a statement of terms of employment provided to the Claimant by Mr Shah on 14 July 2017 and the Particulars of Claim allege: “This document incorrectly stated the Claimant’s terms at £100,000 salary. 50 per cent of salary for a profit target is related bonus”. Then in paragraph 23, there is a claim that the employer company failed to provide the Claimant with a written statement of employment particulars as required by section 1 of the Employment Rights Act 1996. There is a request for a determination as to what should have been included in that written statement of employment particulars.

The Claimant’s evidence in front of the Tribunal included a witness statement which in the version that I have in the papers before me is not dated, either at the top or at the end, as far as I can see. In paragraph 15 of that statement the Claimant said:

“In November 2016 (I believe during the second week), Kiran Shah asked me for my thoughts on a remuneration packet to be effective from 1 January 2016. He said we also need to think about bonus arrangements. Mr Shah then said without a prompt from me that “Without telling me, Joe has increased Jerry Healy and David Bramford’s bonuses from 50 per cent to 100 per cent; will do the same for you”. I responded by saying “Okay, that is fine”, and that I would come back to him with thoughts on the suitable package from 1 January 2017. The variation in bonus terms was duly brought into effect, starting with my bonus for the year ended 31 August 2016.”

That was the evidence of the Claimant in front of the Tribunal. Following the decision of the Tribunal, the Claimant has appealed their decision, and his grounds of appeal settled by Counsel and dated 1 April 2022 include a ground 12 headed:

“In deciding that the Claimant’s contractual bonus was to be calculated based on 50 per cent of his salary and that his notice period was three months, the ET:1 adopted a legally erroneously approach; and/or 2, took into account irrelevant considerations; and/or 3, failed to give adequate reasons for its decision.”