KB-2025-001160 - [2025] EWHC 2369 (KB)

BISL was better off as a result of not having terminated the contracts of what were high performing employees who made profits for the Barings business, earlier than it did. BISL’s counterfactual ignores the profit which was made as a result of the departing EMEA GPF employees continuing in its employment and, indeed, illustrates the artificiality of BISL’s case since any profits made by the employees does not accrue to BISL and there will therefore be difficulties in bringing these profits into account when assessing quantum.

Mr Wheeler merely advised as to the division of a bonus pool which had been allocated, and there is no pleaded case that his advice misled BISL or led to higher bonuses being paid than would have been the case on the merits of the relevant employees’ performances in performance year 2023. Those employees had earned the sums which they were awarded by their performance in that performance year.

BISL also saved money in that, when notice of resignation was given on 8 March, it purported to exercise its right to forfeit Mr Wheeler’s awards under the LTIP – the July 2021 Barings (UK) Deferred Cash Plan - for 2023 and all earlier years. It is to be assumed that it did the same for all departing EMEA GPF employees. On BISL’s counterfactual and on the true construction of the terms of the LTIP which are applicable to dismissals, as opposed to resignations, such employees would have been dismissed “without cause” and their unvested awards would have vested upon dismissal provided they signed a release of claims.