Mr A Austen v Taylor Made Holdings Ltd — 2021

Mr A Austen worked for Taylor Made Holdings Ltd as a Kitchen Sales Designer from 1 April 2019 to 22 December 2019 and was paid partly by commission. He said the commission scheme paid in two tranches, with commission payable on jobs with a 20% mark-up, and that applying his method he was owed £474.90 in Part 1 payments and £662.92 in Part 2 payments, a total of £1,137.82. The respondent said the scheme also allowed commission previously paid to be recouped if the actual profit margin later fell below 20%.

The tribunal said the written commission scheme was silent on that point and that the parties' practice and pay records were therefore critical. It relied in particular on the October payslip showing £81.68 reclaimed as previously paid commission, the Accounts Manager's email explaining that deduction, a December commission document showing £236.82 owing, a March 2020 document showing a net sum of £434.73 owed to the company, and an email from the claimant referring to jobs on which he would lose commission. Although the claimant pointed to two November jobs, Harris and Wilsher, where the margin was 4% and no clawback was made, the tribunal preferred the respondent's interpretation.

On the balance of probabilities, the tribunal was not persuaded that the scheme operated as the claimant said. It found commission was only payable where the profit margin exceeded 20% once the work had been carried out, rather than on the basis of a pre-estimate of cost. The tribunal therefore dismissed the breach of contract and unlawful deduction from wages claim.