Mr L King v Resq — 2023

The claimant was employed as a sales advisor in the respondent's Vodafone retention team and was suspended on 18 July 2022 after concerns about alleged "churn and return" on two June 2022 calls. The tribunal accepted that the claimant had been notified of June commission of £9,222.01 and found that the TSAR Commission Notes applied to the commission scheme and were familiar to the claimant.

On the commission issue, the tribunal found there was no evidence that the claimant had cancelled an existing line and created a new connection as an alternative to an upgrade for the purpose of manipulating performance. It preferred the claimant's evidence that the calls were customer-led, noted that the customers had already decided to cancel or revisit their contracts, and found that Mr Ham did not listen to the recordings or obtain evidence from Ms Hardmeat before issuing the final written warning. On that basis the respondent was not entitled to retain the June commission under clause 3.8, so the withholding of £9,222.01 was an unauthorised deduction from wages.

The tribunal also held that regular overtime formed part of pay during suspension. It found the claimant averaged about 25 hours overtime per week, that the suspension lasted 2.4 weeks, and that £570 gross was properly payable for overtime during that period. It therefore upheld a further unlawful deduction claim for that amount.

The tribunal found the TSAR Commission Notes were contractually binding and that clause 3.6 required the respondent to consider, case by case, whether commission should be paid in lieu for the suspension period. Because the respondent did not make that consideration after the flawed fraud finding, it was in breach of contract. As the tribunal could not know what the Governance Team and Review Board would have done, it assessed the claimant's loss of chance at 50% of estimated commission during the 16-day suspension and awarded £789.04 compensation. The total sum ordered was £10,581.05.