Mr D. Thomas v Daniel Brewer Estate Agent — 2020

Mr D. Thomas was employed by Daniel Brewer Estate Agent from 1 February 2016 to 26 September 2019 as a senior sales negotiator. In his December 2019 claim he sought accrued but untaken holiday pay and one unpaid commission payment of £120 relating to The Old Schoolhouse. At the hearing he pursued eight days of accrued holiday plus two bank holidays worked, relying on paragraph 6.2 of the written contract, while the Respondent said the reference to 28 days' holiday plus bank holidays was a mistake and that the claimant was only entitled to 20 days plus bank holidays.

The tribunal found that the claimant had been paid £12,000 gross a year, plus commission and fuel, until January 2019, when the parties reached a verbal agreement guaranteeing him a minimum of £2,000 per calendar month. It rejected the Respondent's description of that arrangement as a mere gesture and held that it was an agreed variation increasing the claimant's basic pay to £2,000. It also rejected the Respondent's evidence that the holiday clause in the contract was mistaken or later varied, and applied the contra proferentem rule against the Respondent as the drafter.

On holiday pay, the tribunal held that the contractual entitlement was 28 days' paid holiday plus bank holidays, and that the claimant was therefore entitled to payment for eight days of accrued but untaken holiday and two bank holidays worked. Applying section 221 Employment Rights Act 1996, it held that the relevant rate was the guaranteed £2,000 monthly remuneration, but excluded variable commission because it depended on results rather than the amount of work done. It awarded £922.40 gross, calculated as 10 days at £92.24 per day, and directed the claimant to account to HMRC for tax and national insurance on that sum.

The commission claim was dismissed. Although the claimant maintained that he was owed £120 commission for The Old Schoolhouse, the tribunal found on the evidence that Mr Daniel Lodge booked the viewing and was entitled to the commission. It also held that, even if the claimant were otherwise right on entitlement, the disputed £120 would not have taken him above the £2,000 minimum monthly remuneration already paid, so he had suffered no loss.