A former partner of an asset management firm has lost his disability discrimination claim relating to a ‘shocking and disappointing’ £10,000 bonus for 2022 when, because of long Covid, he worked less than four weeks.
The central London employment tribunal heard that, for the year before, 2021, Mr Colliander-Smith received a £185,000 bonus, despite having been absent for two months.
Colliander-Smith was employed by the respondent, Veritas Asset Management LLP, from January 2011 until 2015, when he became an operating partner.
In October 2021, when he was head of performance and risk, he contracted Covid-19, after which he experienced symptoms of long Covid. Both parties at the tribunal did not dispute that Colliander-Smith was “severely unwell”. The claimant said his symptoms continued to be debilitating until early 2023.
Bonus disputes
By his calculations, he worked only 18 days, or 7.5% of the working days in 2022.
Colliander-Smith did not dispute that any bonus entitlement was discretionary under his contract. Veritas decided to award the claimant a bonus of £10,000 for 2022 and notified him of this that December.
The way this was done was upsetting for the claimant. He found out via text message from Mr Burgess, his line manager and Veritas’s managing partner.
The system appeared to record that he was going to be awarded the same bonus as the previous year. Burgess, with whom the tribunal considered Colliander-Smith has a good relationship, corrected that misconception in an “offhand message”, according to the judgment.
Taken aback
“Given the vast difference between the bonus received 2021 to 2022, we understand why the claimant may have been taken aback by the difference,” said the panel.
At a meeting in January 2023, Burgess asked the remuneration committee to reconsider its bonus decision. He told the tribunal there was significant resistance to awarding the Colliander-Smith anything above £10,000.
He said he went in with a higher figure of £97,000 in order to negotiate a middle ground.
The committee did not agree to any increased share of the pot but two individuals, including Burgess, contributed money from their own bonuses to increase the figure, and in the end, the claimant was awarded £40,000.
The tribunal judgment said: “Mr Burgess’s approach to the claimant has, throughout, been both sympathetic and empathetic. His attempts to maintain the claimant within the business and to remunerate him in a way that did not impact the claimant’s financial obligations were, in our view, extraordinary in all the circumstances.”
The panel found that the decision not to pay the Claimant’s normal bonus was because he had not done his job in any meaningful way for an entire year due to his absence.
Genuinely grateful
When he was told his bonus had been increased, Colliander-Smith was genuinely grateful to Burgess. He did not object until a freedom of information request revealed that Burgess had asked for £97,000 on his behalf.
After a dispute about returning to work, and a restructuring which affected Colliander-Smith’s role, the judgment said the situation reached a stalemate: “The respondent had no permanent role for him, and the claimant refused to consider anything less than a permanent role… As a result, and with there being no vacant role to which the claimant could be permanently appointed, a decision was reached… to terminate his membership of the LLP.”
This was communicated to Colliander-Smith on 4 September 2023.
He claimed disability discrimination, a failure to make reasonable adjustments and victimisation, but none of his claims were upheld.
Employment Judge Emma Webster said: “The claimant had not worked for 14 months when the respondent awarded him £10,000. He had no contractual entitlement to any bonus, even if he had worked, and he has not established that any of the work he did do was productive as opposed to simply sending emails that did not add value for the respondent.”
She added: “We do not accept that the Claimant has established that the decision to award him £10,000 is any less favourable than his previous years’ bonus, even if it ought to be measured by reference to the number of days’ work he has put in.
“The claimant’s evidence seemed to rest on the idea that he should be rewarded for the increased effort it took him to do those 18 days’ of work. Given that the award of any bonus is discretionary, it is not clear on what basis he considers that the effort ought to be recognised in this way.”
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