Out-Law Guide 8 min. read
17 Jun 2010, 2:50 pm
Directors’ service contracts must be drawn up with regard to both legal and regulatory provisions on pay. This means being aware not only of restrictions on directors’ involvement in decisions about their own contracts (see: Directors' service contracts: An introduction, under the heading of General principles of negotiation; source of instructions), but also of best practice guidelines for listed companies on pay levels and the make-up of the pay package. The UK Corporate Governance Code calls for a balanced package that pays no more than is necessary to attract, retain and motivate the top talent and avoids an ‘upward ratcheting’ in executive pay. ‘Balanced’ means having the right mix of fixed and variable (often performance-related) elements.
The company should bear several points in mind.
To avoid future dispute, both the employing company and an individual director need to ensure that bonus provisions are clear and fully understood. The key points to remember are listed below.
"The remuneration committee should consider whether the directors should be eligible for annual bonuses. If so, performance conditions should be relevant, stretching and designed to enhance shareholder value and to promote the long-term success of the company. Upper limits should be set and disclosed. There may be a case for part payment in shares to be held for a significant period."
"From the outset, boards should establish a clear policy to ensure any non-contractual payments are linked to performance. No director should be entitled to discretionary payments in the event of termination of their contract arising from poor corporate performance. Remuneration committees should consider retaining their discretion to reclaim bonuses if performance achievements are subsequently found to have been significantly mis-stated."
The 2006 case of Commerzbank AG v Keene, in which a very high paid investment banker sought to challenge the level of his bonus, shows that the courts are generally reluctant to review an employer’s decision on the level of a discretionary award.
The Court of Appeal said that:
"It would require an overwhelming case to persuade the court to find that the level of a discretionary bonus payment was irrational or perverse in an area where so much must depend on the discretionary judgment of the bank in fluctuating market and labour conditions."
While this decision concerns discretionary bonuses in the investment banking sector, it is significant in relation to discretionary bonuses generally. Most companies, after all, operate in fluctuating market and labour conditions.
The service agreement must clearly provide for:
In addition, provisions must reflect the tax treatment of pension contributions, which changed significantly in April 2006. (See our series of guides on Pensions.)
The issue of pension entitlement as part of a severance package hit the headlines (for all the wrong reasons) when the government bailed out Royal Bank of Scotland in 2008–09. The £700,000 a year package for departing chief executive Sir Fred Goodwin was roundly condemned as a reward for failure. (Sir Fred eventually bowed to public and political pressure and agreed in June 2009 to hand around £200,000 back.)
The Joint Statement suggests the following in relation to pensions:
"Pension entitlement or contributions on severance can represent a large element of cost to shareholders. Remuneration committees should identify, review and disclose in the Remuneration Report any arrangements that guarantee pensions with limited or no abatement on severance or early retirement. These pension arrangements are no longer regarded as acceptable, except where they are generally available to all employees. Where opportunities arise, existing contracts should be amended. Such conditions should not be included in new contracts."
Permanent health insurance (PHI) is designed to secure income for employees unable to work through sickness or injury. A PHI policy will usually be taken out by a company for a number of senior employees. The insurance provider will pay sums to the company after the employee has been ill for a specified period; payments will be made until the employee is able to return to work. A typical provision within a director’s service contract may, therefore, entitle a director to six months’ contractual sick pay and, thereafter, sums from the company as received under its PHI scheme.
While this is all very well in theory, in practice PHI can be a troublesome benefit. There is often a gulf between employees’ perception of the scheme and the reality of how it operates.
A PHI policy will usually only provide cover for someone while they remain employed by the company. When an employee is dismissed because of long-term absence through illness (or for any other reason), their entitlement to PHI benefits automatically ceases. The understanding of employees, however, is often that PHI protects them against the impact of long-term illness and that they will continue to receive benefits for as long as they are ill – whether or not the employer chooses to dismiss them.
PHI entitlements have been the subject of a number of disputes. The leading case is that of Aspden v Webbs Poultry and Meat Group, in which it was held that an employee’s contract contained an implied term that their employer would not dismiss them while sick if dismissal would lead to loss of entitlement to benefits under a PHI scheme.
The Aspden decision means that PHI provisions need very careful drafting and demand expert help. A common solution is for the contract to provide that:
Employers must make it expressly clear that an employee’s entitlement to PHI is subject to the rules of the particular scheme. Failure to do so can be an expensive mistake: where the contractual promise exceeds the real levels of cover under the scheme the employer can find itself obliged to give benefits it will not be able to recover.
Provision for share options should not be made in a service agreement but in a separate side letter/agreement. This will ensure that:
For more about the issues raised by remuneration, see our series of guides on Remuneration of directors.