Mr P O’Callaghan, of counsel For the v Mr J Shepherd, Managing Director — 2020

The claimant was employed as a Sales Manager from 1 September 2018. Her contract letter stated that she would receive commission of 5% of all sales generated by her, and that sales generated by other employees would not form part of her commission. The dispute was how that wording should be interpreted and whether, applying that interpretation, the claimant was entitled to unpaid commission on projects completed before her employment ended on 29 August 2019.

The tribunal found that the wording “sales generated” did not mean only sales resulting from leads procured by the claimant. Taking account of the factual matrix, the small-business context, and the way the contract had been operated, the judge held that the claimant was entitled to commission where she was mainly responsible, or principally instrumental, in procuring a project. The tribunal also relied on the fact that the wording was ambiguous and should be construed in the claimant’s favour, and that Mr Shepherd had previously operated the arrangement on a basis that supported the claimant’s interpretation.

On the facts, the tribunal accepted Mr Shepherd’s evidence that the claimant had not generated commissionable sales on the three disputed projects identified as Myton Green, Newfoundland and Westmill. For the remaining projects in dispute, the tribunal accepted that the claimant had done the majority of the work to win them, and therefore treated those projects as generated by her for commission purposes. Mr Shepherd had accepted that, on the basis that the claimant did not need to have introduced the lead but only needed to have done the majority of the work, £6,659.33 would be payable.

The claim therefore succeeded in part, and the tribunal awarded the claimant £6,659.33 gross unpaid commission, subject to deduction of income tax and national insurance contributions at source under PAYE.