Mr D Brown, Counsel For the v Mr G Burgess, Solicitor — 2020

At this preliminary hearing, the tribunal decided only the Claimant’s unpaid commission complaints. The Claimant had been employed by LEMA UK Ltd as General Manager of the Kings Road store on a salary of £50,000 plus 2% commission on his own sales and 1% commission on all Home Division shop sales excluding his own. The dispute concerned 1% commission on shop sales after 1 June 2018, valued at £12,783.61.

The tribunal found that the parties orally agreed on 15 May 2018 to vary the Claimant’s contract so that he would give up the 1% shop sales commission. It preferred Mr Salon’s evidence over the Claimant’s, relying in particular on the Claimant’s failure to object when he received the 20 June 2018 email attaching the 15 May 2018 letter confirming that the 1% commission would not be paid from 1 June 2018. The tribunal also found that the June 2018 communication was consistent with the earlier December 2017 review arrangement and with the fact that 2018 sales were below the agreed budget.

In the alternative, the tribunal held that even if there had been no express oral variation, the Claimant had accepted the change by acquiescence. Applying the authorities it cited, including Solectron Scotland Ltd v Roper and Abrahall v Nottinghamshire County Council, it concluded that the Claimant’s conduct objectively evinced acceptance of the altered terms. Because the commission term had been varied, the Respondent’s failure to pay the 1% commission after 1 June 2018 was neither a breach of contract nor an unlawful deduction from wages. Both claims were dismissed and no monetary award was made.