Mr. E. Stanley v Pello Capital Limited — 2023

Mr Stanley worked for Pello Capital Ltd as a stockbroker from 3 December 2018. His basic salary increased from £25,000 to £30,000 and then to £35,000 from 1 September 2022. Commission was paid quarterly in arrears and, by the August 2022 confirmation letter, was to be 40% of net commission generated above cover, with cover calculated at 2.5 times salary. After a redundancy notice dated 18 November 2022, he received a commission calculation on 29 November 2022 showing £11,237.56 due for Q3 plus November, including £7,801.46 for August to October and £3,436.10 for November.

As against the first respondent, the tribunal held that the commission arrangement was not truly discretionary in the way suggested, or alternatively that any discretion had already been exercised in the claimant's favour when the 29 November 2022 calculation was issued. It found that the failure to pay £11,237.56 was a breach of contract and also that the sum was properly payable as wages. The tribunal also said that, if the matter were treated as an unauthorised deduction complaint, it was one day out of time because the relevant payment date was 30 November 2022 and ACAS early conciliation began on 1 March 2023.

As against the second respondent, the tribunal considered the insolvency payment calculation under section 184 of the Employment Rights Act 1996. It found that the claimant's remuneration varied with the amount of work done within section 221(3), so commission had to be included in the calculation of a week's pay. Using the declared commission figure of £11,237.56 over 15 weeks, the tribunal apportioned commission at £749.17 per week. It declared that the claimant's pay included commission at that rate for the statutory calculation, but did not determine a final monetary shortfall and allowed for a further hearing if the revised calculation remained disputed.