Mr S Bogie v Queensberry Event Hire Ltd — 2024

The tribunal found that Mr Bogie started work on 7 June 2021 under a contract stating an annual salary of £24,960 based on 40 hours per week, with overtime during the busy period to be reimbursed as time in lieu or at an hourly rate and with a commission provision for certain agreed jobs. It accepted that a new contract was issued with effect from 1 March 2022, changing his title to site manager, increasing his hours to 45 per week and his salary to £29,250, and containing no reference to commission.

The tribunal found that the claimant was paid a flat monthly salary, that there was no formal system for recording or signing off hours, and that the hours records kept by the parties were not reliable. It concluded that the claimant was engaged on a salaried basis, expected to work when needed, and that no unpaid overtime, TOIL or other additional hours had been established. On that basis it held that there was no unlawful deduction from wages.

On commission, the tribunal held that the initial contract made payment conditional on agreed commissionable jobs being done to schedule and standard, but no such jobs were approved by the director and no commission was paid. It also found that the March 2022 contract contained no commission term. The tribunal further held that, even if any commission had been payable, a claim would have been out of time under the three-month limit in section 23 of the Employment Rights Act 1996, and that it was not reasonably practicable for the claimant to present the claim in time.

The claimant also pursued holiday pay only in relation to hours he said were unpaid. Because the tribunal rejected the underlying assertion that those hours were owed, it held that no holiday pay was due. The judgment therefore dismissed the claim in full.