In person For the v Respondent — 2021

The claimant withdrew the complaint about failure to include mobile phone and car allowances in pay in lieu of notice at the start of the hearing. The tribunal also refused an application to add a holiday pay complaint, finding it was out of time and that allowing it would cause prejudice to the respondent. The remaining dispute concerned unpaid commission.

On the evidence, the tribunal accepted that the claimant had been told at interview that he would earn 15% commission on gross profit, but it held that the written contract made any commission discretionary. It found that no written commission scheme had been provided to the claimant on 6 January 2020, and that before 23 April 2020 the parties understood commission to be payable upfront under the applicable scheme. The tribunal found that the respondent changed the timing of commission payments in April 2020 because of the pandemic, and that furloughed employees' commission was treated as deferred rather than cancelled.

The tribunal held that the commission complaint was in time as a breach of contract claim, because it was outstanding on termination and was presented within three months plus early conciliation extension. It also held that, if treated as an unlawful deduction from wages complaint, it was still in time because the relevant complaint concerned the August 2020 payment. Applying the principles in Arnold v Britton and Autoclenz, the tribunal found no contractual entitlement to commission, but held that once the respondent chose to pay commission it had to exercise that discretion rationally and in good faith.

The tribunal rejected the respondent's case that commission depended on the claimant meeting targets, found that some withheld payments were irrational or not in good faith, and accepted the claimant's calculations for the completed deals. It also found that the MDC contract was the claimant's deal and that attributing the commission to Mr Robertshaw was not rational. The tribunal awarded the outstanding commission sums for the completed deals, less amounts already paid on some transactions, producing a total award of £5,093.82.