Owed commission after leaving job

The_Magnificent_Spoon

Hi all,


A friend has just left her job, however her old employer owes her a sizeable commission dating back a year or two.


Shes been chasing it since it was due to be paid, but everytime she asked (by email or verbally) she was told that they're looking into it. And was once verbally told they would pay it but never did.


Now she's left, they're just flat out ignoring all contact including phone calls and emails. She's heard from another ex colleague that they've been told to not put her through to anybody if she calls up.


They've never once offered any explanation as to why they wouldn't pay it.


I've been looking up how she should claim the owed commission. My initial thought was letter requesting money within 30 days, with proof of commission payments and qualifying transactions, then letter before action with 14 days deadline, then issue small claims court action.


Although when looking into it, I've read a little about going through ACAS/tribunal? But that theres a three month deadline for this?


What would be the correct way to deal with this, and has anybody got any other thoughts?


Thanks!

agrinnall

Was the commission contractual or discretionary? If it's contractual then I'd say the small claims route is the best option. If it's discretionary then she'd need to make sure she has enough evidence that the payment was to be made before spending any more on chasing it.

The_Magnificent_Spoon

Sorry, I'm not sure what the difference would be. It wasn't specifically in her terms of employment, but it was officially communicated to her whole team via email. It was initially paid up to a point, but then they randomly stopped paying it without any explanation or warning.


She has the original emails, and details that show transactions where she should have been awarded the commission.

The_Magnificent_Spoon

OK just had a quick google, and I would say it was contractual.


It was communicated in the form of 'If you sell X, you will be awarded £Y Commission. If you sell W, you will be awarded £Z'

sangie595

The_Magnificent_Spoon wrote: »

OK just had a quick google, and I would say it was contractual.


It was communicated in the form of 'If you sell X, you will be awarded £Y Commission. If you sell W, you will be awarded £Z'

I think that is debateable. It is not specifically mentioned in the contract of employment. At some point in time the employer started paying a commission, and then later that stopped. That could easily be argued as being discretionary. They didn't have to pay it, they chose to for a time and then decided against continuing it. And she could equally be argued to have accepted this to be the case because she has not taken the action required to obtain this money for a year or two, despite knowing it hadn't been paid.

It's not as clear cut as you think.

DKLS

The_Magnificent_Spoon wrote: »

OK just had a quick google, and I would say it was contractual.


It was communicated in the form of 'If you sell X, you will be awarded £Y Commission. If you sell W, you will be awarded £Z'

I think your friend is out of luck on this one, I have seen it happen so many times, hence why at a few places I have worked the peak resignation time is the week after the bonus payments hit bank accounts.

The_Magnificent_Spoon

sangie595 wrote: »

I think that is debateable. It is not specifically mentioned in the contract of employment. At some point in time the employer started paying a commission, and then later that stopped. That could easily be argued as being discretionary. They didn't have to pay it, they chose to for a time and then decided against continuing it. And she could equally be argued to have accepted this to be the case because she has not taken the action required to obtain this money for a year or two, despite knowing it hadn't been paid.

It's not as clear cut as you think.

That's the thing though, a discretionary commission is more like 'yeah we may pay you £x based on performance or whatever'. This was an agreed payment based on very specific terms, that were met, during the period at which these terms were meant to be enforced.


Just because something isn't in a written contract of employment supplied at the commencement of employment, does not mean that it is not a contractual term, as these are made up of other forms of communication, right?


Her pay was restructured slightly at the time this was bought in, to take into account these commission payments.


And finally, she has been taking action to try and obtain the money. It was bought up in many meetings, and requested probably a dozen times over email (all of which were kept). Everytime she was told that they would look into it/sort it/pay it.

The_Magnificent_Spoon

DKLS wrote: »

I think your friend is out of luck on this one, I have seen it happen so many times, hence why at a few places I have worked the peak resignation time is the week after the bonus payments hit bank accounts.

It wasn't a discretionary 'Bonus Payment', it was an agreed commission scheme to be included as part of her wage.

DKLS

The_Magnificent_Spoon wrote: »

It wasn't a discretionary 'Bonus Payment', it was an agreed commission scheme to be included as part of her wage.

It doesn't matter how it was worded, I would bet that your friend never sees a penny and he/she won't be the first or the last to be stiffed on their bonus.

The_Magnificent_Spoon

DKLS wrote: »

It doesn't matter how it was worded, I would bet that your friend never sees a penny and he/she won't be the first or the last to be stiffed on their bonus.

And why would you say that? Purely based upon the fact that you've known people that couldn't be bothered to chase it, instead of claiming what they are owed?

How many of these people considered taking small claims action? And if they did, what was the result...?

In my opinion, if somebody states "If you do X, we will pay you Y", then when you do X, you are owed Y. I'm not sure how there is any way to wriggle out of this.

sangie595

The_Magnificent_Spoon wrote: »

That's the thing though, a discretionary commission is more like 'yeah we may pay you £x based on performance or whatever'. This was an agreed payment based on very specific terms, that were met, during the period at which these terms were meant to be enforced.


Just because something isn't in a written contract of employment supplied at the commencement of employment, does not mean that it is not a contractual term, as these are made up of other forms of communication, right?


Her pay was restructured slightly at the time this was bought in, to take into account these commission payments.


And finally, she has been taking action to try and obtain the money. It was bought up in many meetings, and requested probably a dozen times over email (all of which were kept). Everytime she was told that they would look into it/sort it/pay it.

Your definition of a discretionary payment is, unhappily for your friend, not correct. It wasn't payable, then it was, then it wasn't. That is all the evidence that she has. That is discretionary! And she didn't do anything about it. She knew for two years that it hadn't been paid and it doesn't matter how many times it was brought up as a query - where is the grievance, and why did it take two years to start legal action? If she genuinely thought she was entitled to the money, she should have done something about it. That's the law. Having not paid it for so long it is nowhere near being an enforceable contractual term - if it ever was one. There isn't the luxury of sitting around until one gets another job. the employer has a good case to argue, and your friend has a verbal statement. That's not much of a contest.