Mrs B Boyle v Employee Advisory Resource Ltd — 2020

Mrs B Boyle worked for Employee Advisory Resource Ltd in a senior sales role for more than 12 years. Her employment ended after she gave notice on or about 14 March 2019, with the relationship ending on or about 14 April 2019. The claim before the tribunal was for unpaid commission. The parties agreed that she had an express contractual right to 5% commission on sales generated by her, and that the respondent's practice was to pay commission in monthly instalments over the year after delivery of invoice to the customer.

The claimant said that, relying on a 2012 contract, she should on termination receive all commission payable on sales she had generated, less commission already paid. The respondent relied on a 2014 contract and said an express term disentitled her to commission on and after termination. The tribunal did not decide that contractual dispute because it identified a separate jurisdictional issue under article 3(c) of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994.

On the claimant's own case, the claim had not arisen and was not outstanding at termination. The tribunal reasoned that the only express commission terms did not state when payment became due, and the unchallenged payment practice meant her contractual entitlement corresponded with that practice. On that basis, no further commission was owing when her employment ended other than what had already been paid in the April 2019 payroll run, even though later instalments would have fallen due if employment had continued. The tribunal therefore held it had no jurisdiction and dismissed the proceedings. It added that it was not advising on the merits of any court claim, but suggested specialist advice before any further litigation.