Czarnecki v Choice Textiles Ltd UKEAT/0331/12/GE, [2013] All ER (D) 77 (Sep)
In determining a claim for arrears of pay, it was settled law that: (i) the starting point was the contract of employment; (ii) if the contract of employment entitled the employee at least to consideration of the exercise of a discretion, it would be a breach of that contract not to consider its exercise; (iii) where a discretion was said to be exercisable only upon some prior facts having been established, there could be no question factually of any award becoming payable unless those factual preconditions were satisfied; (iv) if the discretion had been exercised, then the exercise might be reviewed; (v) if the discretion had not been exercised then the employee was entitled to be put into the position in which he would have been if the contract had been fully and properly performed; (vi) in such a situation the employer would have given proper consideration to the exercise of the discretion; (vii) the task in assessing compensation for the breach therefore, was to ask what that employer, acting neither irrationally nor perversely would have decided
