Commentary

(c) Does a discretion exist?

Division BI Pay
| Commentary

(c) Does a discretion exist?

| Commentary

(c)     Does a discretion exist?

It is usually obvious that the employer is exercising a discretion so as to attract judicial scrutiny in line with the case law set out above. However, care needs to be taken in this area. As Mrs Justice Slade pointed out in Small v Boots Co plc [2009] IRLR 328, EAT, the use of the word discretionary in a bonus scheme can be ambiguous and 'may be attached to the decision to pay a bonus at all, its calculation or its amount'. In such a case there was an error of law when

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