Nathan Baird v Latcham Dowling — 2023

Nathan Baird worked for Latcham Dowling as a Sales Negotiator from 16 May 2022 until 1 August 2022. The tribunal accepted that the written offer email set out salary of £18,250 per year, 5% commission on personal sales, and working hours of Monday to Friday 9am to 5.30pm with a one-hour lunch break and Saturday 9am to 1pm. It also accepted that there was no formal written contract, that the claimant was 22 during the employment, and that although the respondent argued the lunch hour was unpaid, the claimant in practice had to remain available to take calls and worked at least 46.5 hours per week.

On the National Minimum Wage claim, the tribunal treated the employment as salaried hours work under the National Minimum Wage Regulations 2015. It found the claimant's basic hours were 41.5 hours per week on the wording of the offer, but that in practice he worked more than that and was paid in equal monthly instalments. Because the respondent could not produce payslips or records showing a compliant hourly rate, and because section 28 of the National Minimum Wage Act 1998 places the burden on the employer to show the NMW was paid, the tribunal upheld the claim and awarded £749.26. The holiday pay claim also succeeded. The tribunal found the claimant had taken no holiday, that he had been paid £415.93 towards holiday pay, and that on its calculation he remained owed £49.73.

The commission claim succeeded because the tribunal found the contract entitled the claimant to commission at 5% of the respondent's 1% on completion of a sale, and there was no express or implied term that he had to remain employed when completion occurred. It relied on the absence of clear wording to that effect and referred to Brand v Compro Computer Services Ltd. Three completed sales generated commission of £70, £220 and £143, which totalled £433. The notice pay claim also succeeded. The tribunal accepted the claimant's evidence that he resigned on 1 August 2022 but was later told not to come in again, found there was no clear waiver of notice, and held that the respondent's action cut short the notice period so that the resignation became a dismissal. Applying section 86 ERA 1996 and Marshall (Cambridge) Ltd v Hamblin, it awarded one week's notice pay of £426.87. The total award was £1,658.86 gross, subject to any appropriate deductions for tax and national insurance.