Ms S Hare v API Global UK Limited — 2024

Ms Hare, employed by API Global UK Limited since 15 July 2020 and later working as Sales and Mortgage Progression Manager, brought a claim for unauthorised deductions from wages based on commission payments. The respondent did not attend the hearing. Employment Judge B Smith refused the late postponement application, found there were no exceptional circumstances, and proceeded in the respondent's absence after considering its emailed explanations and documents.

The central issue was how commission should be calculated under the claimant's contractual documents. The claimant said commission was payable by reference to the date a contract for residential property sales was issued and later exchanged. The respondent said the arrangement had changed and that commission should be calculated from the date of instruction. The tribunal preferred the claimant's reading of the documents and correspondence, and found there was no sufficient evidence that the claimant had agreed to a worse commission basis from January 2021.

Applying section 13 ERA 1996 and the 'properly payable' test, the tribunal found a series of unauthorised deductions between November 2023 and June 2024 totalling £5,450. It held the claim was in time as a series of deductions and allowed an amendment so that later months could be included, applying the Selkent and Vaughan approach to amendments. The tribunal also noted that the respondent did not provide a real grievance response until 11 June 2024 and a fuller reply until 31 July 2024.

On remedy, the tribunal said it could not award compensation for stress and could not order a future revision of the commission structure. It awarded the gross underpaid sum of £5,450 plus a 10% uplift under the ACAS Code, amounting to £5,995 in total, with the claimant responsible for tax and National Insurance on the award.