Ms G Thom v Hobart Real Estate Partners Limited — 2021

Ms Thom brought a Part II Employment Rights Act 1996 claim seeking payment of an alleged Worship Square performance fee or profit share, said to be a minimum 10% under clause 6.2 of her contract. The tribunal heard evidence about the February to April 2019 emails and meetings in which the parties discussed a proposed profit share, together with the later sale of Worship Square and the payments made to Hobart Worship Street Ltd. It also recorded that the separate redundancy-payment complaint had previously been dismissed on withdrawal by Employment Judge McKenna on 13 April 2021 and was not pursued before Employment Judge Heath.

Applying ordinary principles of contractual interpretation, the tribunal held that clause 6.2 was a general remuneration clause for future investments where the claimant was designated asset manager, but that the percentage and terms of each performance fee had to be negotiated and agreed in advance of each project. The judge found that no agreement was reached in the 2019 exchanges about the Worship Square project. Mr Harris's emails of 6 and 29 April 2019 were treated as stating the respondent's position in ongoing negotiations, not as creating a concluded agreement, and the claimant's own response on 24 April 2019 showed that she had not accepted the proposed 10% at that stage.

The tribunal further found that, although the respondent had retained a discretion under the first sentence of clause 6.2, it could not conclude that a rational exercise of that discretion would inevitably produce an ascertainable sum, particularly where the claimant had expressly not accepted the proposed percentage and the calculation agreed with Bridges was not established. It therefore held that the claim, however formulated, was for an unquantified and unidentified sum. For that reason the tribunal concluded that it had no jurisdiction to determine the unauthorised deductions complaint and dismissed it, without going on to decide the remaining issues.