Ms I Sihra v Sera Neon Ltd — 2023

The claimant’s original form, issued on 3 March 2022, ticked unfair dismissal and other payments. By the time of the final hearing, the dispute had narrowed to unpaid commission said to arise under the claimant’s contract. The tribunal recorded the relevant contractual wording: clause 12 provided salary of £30,000 per year plus discretionary commission calculated as 5% of net profits from business generated via warm leads, and clause 14 stated that any bonus, commission or similar incentive remuneration rested at the employer’s sole discretion and did not accrue as a contractual right.

When the tribunal explored the claim with the claimant, she accepted that the respondent was contractually entitled to withhold any commission by exercising that discretion. The judge found that she had no prepared argument or evidence that the discretion had been exercised unreasonably, irrationally, or discriminatorily, and noted that no such allegation had been pleaded. The tribunal therefore regarded the claim as very weak on the merits, because it would have required the tribunal to override the agreed contractual terms without any pleaded or evidential basis for doing so.

The tribunal also set out the procedural history. The claimant had been ordered to clarify her claims, to state the amount sought and how it was calculated, to provide income information, and to exchange witness statements and documents. She did not comply on time, did not provide a witness statement, and had not disclosed the recording she said contradicted the respondent’s evidence until the day before the hearing. She said she had been ill with flu, but the tribunal found that this did not excuse non-compliance over a period of about four months, particularly as she had been able to email throughout and had provided no medical evidence.

Applying Rule 37 of the Employment Tribunal Rules of Procedure, the tribunal found grounds to strike out the claim under rule 37(1)(b), (c) and (e). It relied on the reasoning in Emuemukoro v Chroma Vigilant (Scotland) and Higgins, and held that a fair hearing in the listed window was impossible because the claimant had not provided the evidence or disclosure needed for the final hearing. The tribunal decided that a lesser sanction or adjournment would not be proportionate, and therefore struck out the remaining wages/commission claim. No substantive monetary remedy was awarded, and the respondent merely intimated that it would seek costs in writing.