Mr P Brierley Mr N Porley v Mitie Limited — 2021

The claimants alleged unlawful deductions from wages in relation to commission payments for August, September and October 2020. The hearing was limited by agreement to a preliminary issue: how the respondent's commission scheme should be interpreted for those claims. The Tribunal did not decide the precise sums due or whether any actual unlawful deductions had been made.

The Tribunal found that the written commission scheme said commission was payable after all costs for the contract had been accounted for and the actual gross margin was known. It held that this wording was clear and allowed the respondent to take into account all costs of the contract, including relevant indirect costs, before calculating commission.

The Tribunal accepted that the scheme had historically been operated for the claimants on the basis that only direct costs were deducted, and noted that this had occurred for many years. However, it found no evidence of a contractual variation and held that an implied term based on custom and practice could not override the express wording of the scheme. The remaining question of whether the claimants had been paid the sums due in the relevant months was left for resolution between the parties or a final hearing.