Mr C Bursnell v Apollo Lighting Limited Heard: Remotely (by video link) — 2021

Mr C Bursnell was employed by Apollo Lighting Limited from 13 June 2011 and became Managing Director on 1 October 2018. He stepped down from that role on 18 March 2019 and moved to a Specification Sales Engineer role under a further written agreement that the tribunal held set a 4-day week, a £25,000 salary, commission at 5% on invoiced sales from 18 June 2019, and a commission threshold of £100,000 in each financial year beginning on 1 August. The tribunal found that the claimant was subject to the respondent’s standard disciplinary terms from that date and that commission was payable when monies were actually received from customers.

In mid-2020 the claimant raised concerns about commission and holiday pay, including White Rose, sales allocated to the House and DMS ledgers, and holiday pay calculations. The tribunal found that Ms Parker acknowledged an error in holiday pay and that the respondent identified further commission sums due, including payments made in September and November 2020. It held that the claimant accepted the grievance outcome letter dated 11 September 2020 by signing it on 16 September 2020, and that this waived any earlier breaches covered by that agreement. The tribunal also found that the respondent’s later recalculation of holiday pay resulted in the claimant being overpaid overall for the 2020 holiday year.

The unfair dismissal claim failed because the tribunal found the claimant was not dismissed. It accepted that the claimant subjectively regarded the relationship of trust and confidence as broken on 13 August 2020, but it found the respondent had not acted in a way calculated or likely to destroy that relationship before the grievance settlement, and that any earlier breach had been waived when the claimant signed the 11 September agreement. The tribunal referred to the implied term of trust and confidence, Malik v Bank of Credit and Commerce International SA, Leeds Dental Team Ltd v Rose, and the fair-process approach in Sainsbury’s Supermarkets Ltd v Hitt, but concluded that by 28 October 2020 the claimant had affirmed the contract.

The unlawful deduction claim failed overall. The tribunal rejected the suspension-period commission claim because the claimant had not reached the £100,000 threshold in the 2020/21 financial year. It rejected the White Rose claim because the claimant had accepted the 2.5% settlement in the grievance outcome. It held that the alleged hidden-sales claim could not proceed because the claimant had not identified a recoverable sum and the figures were not produced. It rejected the £1,046.88 commission underpayment point because the claimant accepted there had been a double entry. On Thornleigh, the tribunal found that commission of £1,046.88 would otherwise have been due on the natural reading of the contract, but that claim had been compromised in the September 2020 agreement and was also out of time. On holiday pay, the tribunal found that the claimant had taken 11 days’ leave, had accrued 18.5 days by termination, and had ultimately been paid more than he was owed for the year.