contract wording regarding bonus clawback
Discussion
Quick question for the J&EM hive mind.
'A friend' is just about to sign an employment contract - as part of the new job, there is a (not insignifcant) sign-on bonus which will attract the top rate of tax.
i.e. either at ~ 50% tax, or having dumped it into their pension, I read this wording as they need to go find the full amount to repay which seems rather harsh.
Can you (in theory) un-take / return pay and somehow declare the repayment back to the company on your tax return if you need to as otherwise, this seems rather nasty to me.
I found an HMRC page on negative earnings which says things like "might, may, you need to check if".... so is as clear as mud.
Thoughts?
'A friend' is just about to sign an employment contract - as part of the new job, there is a (not insignifcant) sign-on bonus which will attract the top rate of tax.
the contract said:
In addition, you will be eligible to receive a one-time sign-on bonus of X. Your sign-on bonus will be paid in one lump sum after 6 months of employment, Should you voluntarily leave the company or be terminated by the company within the first 12 months, the entire amount of the sign-on bonus shall be repayable to the company.
And I am concerned that this is quite a bugger if for example, the bonus is paid, the person is let go, and they have to return the entire amount of the sign on bonus. i.e. either at ~ 50% tax, or having dumped it into their pension, I read this wording as they need to go find the full amount to repay which seems rather harsh.
Can you (in theory) un-take / return pay and somehow declare the repayment back to the company on your tax return if you need to as otherwise, this seems rather nasty to me.
I found an HMRC page on negative earnings which says things like "might, may, you need to check if".... so is as clear as mud.
Thoughts?
Do you get the sense that this is an unusual arrangement for the firm in question? That clause strikes me as something that they haven't really thought through.
I haven't ever come across a sign on bonus that is paid six months after joining, and / or is subject to repayment. But perhaps my industry is different.
I haven't ever come across a sign on bonus that is paid six months after joining, and / or is subject to repayment. But perhaps my industry is different.
Yes, I think it is unusual for them (possibly the first time they've done it).
I'm not sure whether going back and proposing slighlty different wording is the right thing to do,
Or is it better to just accept it, knowing that should the worst happen, it just means finding a lump sum in the same month as you lose your job
I'm not sure whether going back and proposing slighlty different wording is the right thing to do,
Or is it better to just accept it, knowing that should the worst happen, it just means finding a lump sum in the same month as you lose your job
Not received as a signing on bonus but a retention bonus ( and negotiated for my direct team as well ) and a similar clause was applied except it was for 12 months.
As with your friends it was the whole amount ( gross ) that would have been repayable - this is pretty standard practice afaik.
I guess your friend could try and restrict the clawback to just applying if he leaves voluntarily.
As with your friends it was the whole amount ( gross ) that would have been repayable - this is pretty standard practice afaik.
I guess your friend could try and restrict the clawback to just applying if he leaves voluntarily.
If I was "your friend" I would be amending the clause to state you leave or are terminated for Gross Misconduct then it is repayable. Anything else means at the 11 month mark they can just give you your notice and expect to get the bonus back. That makes no sense to me from an employee perspective.
Jasandjules said:
If I was "your friend" I would be amending the clause to state you leave or are terminated for Gross Misconduct then it is repayable. Anything else means at the 11 month mark they can just give you your notice and expect to get the bonus back. That makes no sense to me from an employee perspective.
Agree... you can amend a clause and sign it. Up to them if they also sign.I’ve had similar before. If this was put in front of me I’d want something to say that in case of redundancy, I could keep it.
As for making it only repayable in case of gross misconduct, I think that reply misses the point. It’s badged a golden handshake but in reality the company sees it as a loyalty bonus from the sounds of it, so from their perspective it’s fair enough that they want it back if you leave within a year. And the fact that you’ll lose the tax paid on it is probably part of their aim to disincentivise you leaving (and simplifies calculations).
If you think there’s a good chance you might leave within 12 months, maybe ask the repayment amount to be half? That way you get your bonus now, and they get their disincentive, without you risking being out of pocket later on
As for making it only repayable in case of gross misconduct, I think that reply misses the point. It’s badged a golden handshake but in reality the company sees it as a loyalty bonus from the sounds of it, so from their perspective it’s fair enough that they want it back if you leave within a year. And the fact that you’ll lose the tax paid on it is probably part of their aim to disincentivise you leaving (and simplifies calculations).
If you think there’s a good chance you might leave within 12 months, maybe ask the repayment amount to be half? That way you get your bonus now, and they get their disincentive, without you risking being out of pocket later on
m3cs said:
And the fact that you’ll lose the tax paid on it is probably part of their aim to disincentivise you leaving (and simplifies calculations).
If you think there’s a good chance you might leave within 12 months
I don't think there's a good chance I'll leave in 12 months but you never quite know how things will go - there are several plausible situations that could result in it happening through no fault of either party. If you think there’s a good chance you might leave within 12 months
Having thought about it a little bit more, I think I might just take the risk and sign it. It amounts to about 3 months wages (after tax) that would need to be repaid, which whilst a fairly chunky amount, it would be pretty annoying, but not life threatening if it does come to pass.
My current thought is that when the payment comes, I'll take it as regular pay (and pay the tax on it), hold on to the remaining 50% in a savings account, and drop the whole lot into my SIPP before the end of the tax year but after I'm past the 12 month point and claim the tax back from HMRC....
p.s. thanks all
m3cs said:
I’
As for making it only repayable in case of gross misconduct, I think that reply misses the point. It’s badged a golden handshake but in reality the company sees it as a loyalty bonus from the sounds of it, so from their perspective it’s fair enough that they want it back if you leave within a year.
I think you might want to re-read how I phrased the clause.............As for making it only repayable in case of gross misconduct, I think that reply misses the point. It’s badged a golden handshake but in reality the company sees it as a loyalty bonus from the sounds of it, so from their perspective it’s fair enough that they want it back if you leave within a year.
fat80b said:
i.e. either at ~ 50% tax, or having dumped it into their pension, I read this wording as they need to go find the full amount to repay which seems rather harsh.
Can you (in theory) un-take / return pay and somehow declare the repayment back to the company on your tax return if you need to as otherwise, this seems rather nasty to me.
The way overpayment recoveries work is that Can you (in theory) un-take / return pay and somehow declare the repayment back to the company on your tax return if you need to as otherwise, this seems rather nasty to me.
1. Payroll will put through a minus £10k
2. there should be a corresponding reduction in Tax, Ers NI, Ees NI
3. You will only repay the net amount, not the gross amount.
That ^^ is the easiest way to do it. If however they DID recover from your net pay (post tax) then HMRC will think you have paid the correct amount of tax and you will NOT get it refunded A deduction from net pay doesn't reduce your "taxable pay".
Countdown said:
fat80b said:
i.e. either at ~ 50% tax, or having dumped it into their pension, I read this wording as they need to go find the full amount to repay which seems rather harsh.
Can you (in theory) un-take / return pay and somehow declare the repayment back to the company on your tax return if you need to as otherwise, this seems rather nasty to me.
The way overpayment recoveries work is that Can you (in theory) un-take / return pay and somehow declare the repayment back to the company on your tax return if you need to as otherwise, this seems rather nasty to me.
1. Payroll will put through a minus £10k
2. there should be a corresponding reduction in Tax, Ers NI, Ees NI
3. You will only repay the net amount, not the gross amount.
That ^^ is the easiest way to do it. If however they DID recover from your net pay (post tax) then HMRC will think you have paid the correct amount of tax and you will NOT get it refunded A deduction from net pay doesn't reduce your "taxable pay".
fat80b said:
m3cs said:
And the fact that you’ll lose the tax paid on it is probably part of their aim to disincentivise you leaving (and simplifies calculations).
If you think there’s a good chance you might leave within 12 months
I don't think there's a good chance I'll leave in 12 months but you never quite know how things will go - there are several plausible situations that could result in it happening through no fault of either party. If you think there’s a good chance you might leave within 12 months
Having thought about it a little bit more, I think I might just take the risk and sign it. It amounts to about 3 months wages (after tax) that would need to be repaid, which whilst a fairly chunky amount, it would be pretty annoying, but not life threatening if it does come to pass.
My current thought is that when the payment comes, I'll take it as regular pay (and pay the tax on it), hold on to the remaining 50% in a savings account, and drop the whole lot into my SIPP before the end of the tax year but after I'm past the 12 month point and claim the tax back from HMRC....
p.s. thanks all
Being serious for a moment, if the clause is as written in the OP I would want "terminated by the company" to be defined much more tightly. Terminated for Gross Misconduct is one thing but Terminated for being in the wrong place on the " rank and yank" curve is another, and no company is as good or as honourable as you think they are when you've got an employment contract to sign...
Collectingbrass said:
Forgive me if I'm teaching you to suck eggs but I would get an employment lawyer to look at that before you sign it. 3 months after tax is either an insignificant amount of money in the real world, in which case why would the employer-to-be pay it, or it's significant to most normal plebs in which case why take a risk without insurance backed advice?
It's reasonably chunky imho. The reason they have offered it (even though I didn't ask them to) is that I currently have a retention bonus of a similar amount that I am walking away from in order to join this company. So it is probably quite an unusual circumstance. Collectingbrass said:
I'm almost tempted to call custard on the onboarding bonus actually being in the contract :-)
I'm not sure I can get a photo of a tin of custard alongside the contract wording as the actual text has the company name in it, but I can 100% promise that it is in the employment contract received. Collectingbrass said:
Being serious for a moment, if the clause is as written in the OP I would want "terminated by the company" to be defined much more tightly. Terminated for Gross Misconduct is one thing but Terminated for being in the wrong place on the " rank and yank" curve is another, and no company is as good or as honourable as you think they are when you've got an employment contract to sign...
Probably good advice. My thinking has been that there are several scenarios (some good, some bad, and some that can't be imagined) where the bonus is claw-back-able and whilst removing some of them through wording changes is possible, it is probably hard to remove them all. I certainly subscribe to the view that "no company is as good or as honourable as you think they are" hence thinking through the question on here.
In either case, I've accepted the risk and it's now signed
Don't forget, that even if the clawback is invoked it's all potentially negotiable at the time.
Someone I'm aware of was terminated for gross-misconduct and had a hefty sign-on bonus which was recoverable in this event. However, in order to make the situation go away with minimal fuss the company said to keep it, sign an NDA and go away quietly. At the end of the day, neither employer or employee wants any form of legal battle so there's often some middle ground to find.
Someone I'm aware of was terminated for gross-misconduct and had a hefty sign-on bonus which was recoverable in this event. However, in order to make the situation go away with minimal fuss the company said to keep it, sign an NDA and go away quietly. At the end of the day, neither employer or employee wants any form of legal battle so there's often some middle ground to find.
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