EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102090/2020 (V) Held via Cloud Video Platform (“CVP”) on and November 2020 Employment Judge N M Hosie Mr J O’Mara v Concept Office Furniture Ltd — 2021

John O’Mara brought claims against Concept Office Furniture Ltd for unlawful deduction from wages and breach of contract. The tribunal found his evidence measured, consistent and supported by contemporaneous documents and email exchanges, and noted that neither John Kane nor Simon Darvall gave evidence. It preferred the claimant’s account where there was conflict and rejected the respondent’s case on the material issues.

On commission, the tribunal found that the 18 October 2018 offer of employment recorded a contractual entitlement to sales commission at 2.5%. It held that the agreed position was that commission would not be payable on sales referred by the Business Moves Group and would only be paid once the customer had paid. The respondent’s reliance on a separate Commission Agreement was rejected, and the tribunal held that the claimant had suffered an unlawful deduction from wages in respect of unpaid commission. The respondent accepted that, if liable, the sum due would be £6,013.75 subject to deductions for income tax and national insurance, and judgment was issued for that amount.

On the shareholding issue, the tribunal found that the parties had reached a legally binding agreement that the claimant would receive a 25% shareholding in Concept. It treated the wording in the offer letter, “Equity: Equality (sic) Shareholding of 25%”, as a typing error and relied on the surrounding correspondence, including emails from Simon Darvall referring to “25% Equity” and stating that 25% in Concept was “all yours”. The tribunal held that the respondent breached that agreement by failing to transfer the shareholding. Damages for that breach were not quantified at this stage because further information had been produced shortly before the hearing; the parties were directed to try to agree a settlement and, failing that, a further hearing would be fixed to assess damages.