"It's become a lot more difficult to argue that you didn't get a fair bonus," says Elaine Aarons, leading employment law specialist at Withers LLP. "It should still be possible to argue that a zero bonus is unfair, but if you were paid 25% of what you think you should have received, you will have to work harder to frame your arguments as the courts have made it clear that they prefer not to intervene," she adds.
Aarons says last year's case between Commerzbank and James Keen, which the bank won on appeal, is behind the new approach to bonus cases. Keen, who managed a prop desk at Commerz, argued that the bank acted 'irrationally and perversely' by paying him a smaller than expected bonus in 2003 and 2004, and that it should have paid him at least something for the six months leading to June 2005, when he was made redundant.
However, the Court of Appeal judged that the decision regarding the size of his bonus was ultimately down to the bank.
"Before Keen, it was possible to argue that your bonus was low and not justifiable on the basis of an individual or a bank's performance," Aarons says. "That is now much harder, although each case will depend on its facts and I still believe we will see successful claims."
The Financial Times (and various other papers) reported yesterday that Paul Rivlion and Neil Lawson-May, formerly joint heads of Deutsche Bank's real estate business, are arguing that the bank has reneged on a deal that should have entitled them to 5% of a lucrative property transaction. The two bankers are reportedly claiming that the bank underpaid them to the tune of 3.4m.
The bank reportedly claims that their bonus was wholly discretionary, and that the two men didn't contribute any 'real value' to the deal.
Takacs gives up the ghost
In the meantime, what happened to the Takacs v Barclays Services Jersey case, which was expected to give bankers' bonus cause a boost? Aarons says it's settled out of court. Apparently, this isn't unusual - in 27 years of covering employment law, she hasn't had a single case go the whole way.