Claimant v Xeretec Office Systems Ltd — 2022

The claimant began work for the respondent on 1 November 2021 as a Senior Sales Specialist. The tribunal found that before employment started he had been told, and later accepted in writing, that for the first three months he would receive a commission guarantee, with commission earned from business signed during that period to be deducted from the guarantee. The tribunal accepted that there was also an oral agreement for commission guarantee payments of £2,000 per month for November 2021, December 2021 and January 2022, but it treated the offer letter as providing for a three-month cumulative guarantee.

The tribunal found that the claimant had been overpaid commission in February 2022 (£150) and March 2022 (£4,494.87) because the relevant sales had been signed during the guarantee period and should have reduced the cumulative commission guarantee total. It accepted that the wording could have been explained more clearly and that the claimant had industry experience suggesting a monthly approach, but held that the offer letter was reasonably clear that the guarantee operated as a single three-month sum rather than separate monthly allowances.

On that basis, the respondent was entitled to recover the overpayment from the claimant's final pay, including the notice period. The tribunal held that section 14 ERA 1996 applied to the recovery of an overpayment and that, in any event, clause 19 of the contract also supported the deduction. The final pay slip showed gross pay of £4,871.73, a deduction of £4,347.85 for commission overpayment, a further deduction of £307.68 for two days' excess annual leave, and a net payment of £216.20. The claim for notice pay was therefore dismissed.