Ms E Callahan v LMRE Ltd — 2024

Ms E Callahan worked for LMRE Ltd from 6 May 2021 until 1 December 2023, after resigning and then being on garden leave. She moved from Resourcer to Consultant and then Senior Consultant, and as a commission-earning employee she claimed unpaid commission for four candidate placements completed before the end of her employment, together with legal fees. The respondent said the relevant commission scheme, introduced in 2022, provided that consultants who left during the year forfeited their right to receive future commission.

The tribunal accepted that the claimant did not attend the December 2021 presentation on the new scheme, but she was emailed the PowerPoint slides on 5 January 2022. It found that the full commission scheme document was not shared with her and that commission documents were not available on the Breathe HR system during her employment. The tribunal also found there had been no specific discussion with management about forfeiture on resignation, and it rejected the suggestion that the respondent had deliberately delayed invoicing to avoid commission.

Applying clause 7.2 of the contract and the wording of the scheme, and considering the contra proferentem principle, the tribunal held that the phrase "receive future commission" meant no commission would be paid after resignation, regardless of work done before that point. It therefore found that no commission was payable, so the unlawful deduction from wages claim failed and the same reasoning meant the breach of contract claim also failed.

The separate claim for reimbursement of legal fees was dismissed. The tribunal said awards of that kind are available only in limited circumstances under Rule 76 of the Employment Tribunal Rules of Procedure 2014, and those circumstances were not met on the facts found.