Mr J Coleman v Hi Audio Visual Limited — 2020

Mr Coleman had previously worked for Hi Audio Visual Ltd as a consultant and then returned as an employee from 1 October 2018. Before employment began, he and Mr Callen exchanged emails and texts about remuneration. The tribunal found that Mr Callen sent a draft employment contract on 15 August 2018, that Mr Coleman later received a hard copy at the start of October and another copy by email at the end of October, and that he started work without making any written objection to the commission terms. The contract provided a salary of £20,000 and commission of 50% of net profit after £5,000 per month, with the target carried forward if not met.

The central dispute was whether the £5,000 monthly threshold applied from the start of employment or only after a six-month period. The tribunal rejected Mr Coleman's evidence that he had not seen the August contract email or that a verbal variation had been agreed. It found that he was aware of the draft terms before or at the outset of employment, that he did not challenge them in writing during the employment, and that there was no reliable evidence of any agreed six-month deferral of the target. The tribunal applied the approach to acceptance by conduct and written contracts referred to in Collymore v Capita Business Services Ltd and the caution about alleged oral variation discussed in Prometric v Cunliffe.

The tribunal also considered the payment of £1,400 made in July 2019. It accepted Mr Callen's evidence that this was a discretionary payment agreed after discussion of Mr Coleman's near-term expenses, not commission calculated under the contract and not evidence that the commission structure had been varied. Because the contractual threshold was found to have applied from the start of employment and the accumulated monthly profit target was not exceeded, the tribunal held that no commission was due. The claim was therefore unsuccessful.