Mrs H Malcolm v Glen Travel Ltd — 2021

Mrs H Malcolm brought a claim under Part 2 of the Employment Rights Act 1996 seeking unpaid commission from Glen Travel Ltd. The Respondent disputed jurisdiction, arguing that she was neither an employee nor a worker and that there was no proof of the amount claimed. The tribunal found that a contract existed between the parties and that the Claimant had been recruited as a homeworker to generate bookings through her own client base, trading as Heather Malcolm Travel under the Respondent's ABTA and ATOL cover.

Applying s230(3) ERA 1996, the tribunal held that the Claimant satisfied limb (b) of the worker definition. It found an implied obligation of personal service, reasoning that the parties plainly contemplated the Claimant herself doing the work and that there was no evidence of a right of substitution. The tribunal also rejected the Respondent's case that she was operating a separate business undertaking: it found that the Respondent exercised relevant control through its systems, phone line, email domain and licences, and that the Claimant was integrated into the Respondent's business rather than acting as an independent client or customer relationship.

On the substantive deduction claim, the tribunal held that non-payment of the commission due amounted to an unauthorised deduction of wages contrary to s13 ERA. Commission was treated as wages for these purposes. The tribunal did not accept the Claimant's figure of £3,076 because the documentary material relied on was illegible or procedurally not admitted, and there was no adequate evidence to support a higher sum.

The tribunal awarded £2,600, which was the amount Mr Glen accepted in evidence was owed. No separate remedy elements were recorded beyond that sum, and the judgment contains no award for interest or any other head of loss.