Mr R Mumford v Helston Garages Group (Management) Limited — 2023

Mr Mumford presented claims for breach of contract, whistleblowing and unlawful deduction from wages. The breach of contract and whistleblowing complaints were withdrawn on 23 May 2022, leaving only the unlawful deduction claim for decision. The tribunal found that the claimant’s original 1998 contract contained no express commission term, and it did not accept the respondent’s contention that later signed contracts from 2014 and 2017 had been issued, because no signed copy or other evidence was produced.

The tribunal accepted that the claimant’s employment had long included commission arrangements, but the written documents showed changing schemes rather than a fixed contractual entitlement. The 2004 contract referred to salary plus commission without explaining how commission was calculated or paid. The last signed pay scheme dated 25 March 2016 described a variable pay element based on quarterly performance and reserved the right to amend or vary the scheme on at least 30 days’ notice. The tribunal found that a new quarterly scheme was presented in January 2020, that the business closed during the pandemic, and that when the claimant returned in August 2020 the scheme changed to a monthly basis without 30 days’ notice. In June 2021 the respondent said it would revert to the previous scheme backdated to 24 August 2020 and gave notice of another new scheme.

Applying section 13 of the Employment Rights Act 1996 and the 2014 Limitation Regulations, the tribunal held that it could not consider alleged deductions before 15 February 2020. It then rejected the argument that the commission scheme was an implied contractual term. The tribunal said there was no presumed intention at the outset as to how commission would be calculated and paid, the specific scheme was not necessary to make the contract work, and the changing arrangements were not sufficiently certain or clear-cut to be implied by custom and practice. On that basis, the tribunal held that the commission payments were not properly payable under the contract and dismissed the unlawful deduction from wages claim, including the complaint about the notice given in relation to the August 2021 scheme.