Annual Leave and Commission

Tripledrop

I wonder if someone could advise on where I stand with my company and annual leave commission payments please?

I earn a basic salary, and (last year at least) around 100% on top in commission payments.

Basically, in 2014 someone took British Gas to court as they made around 60% of their money through commission and when on annual leave they only got paid their normal salary, hence discouraging workers from actually taking leave. He won the case, and as far as I can tell it's now a requirement to pay commission (and guaranteed overtime) on top of the annual leave payments.

My company isn't doing this, and when it was raised recently, said because the commission we make is longer-term rather than regular, it didn't count (or something like this).

I know this isn't correct, but would like it confirmed if possible (and whether there are actually any exclusions), along with rights to claim back-pay.

Happy to provide any additional info that is requested.

Thanks!

sangie595

As is so often the case, on commission the court wasn't anywhere near clear in its ruling. As a point of safety (i.e. to avoid landing in a tribunal) employers are generally being advised that they should pay commission in holiday pay, and that the usual rule of "over a 12 week period" should be the calculating reference period (because this period applies to other such calculations).

You should also note that this applies ONLY to the four weeks leave which is the European standard - employers do not have to do this for periods of leave over four weeks unless UK law is changed. Which I doubt (unless the EAT do it, but they haven't had a case yet - it will happen, but until it does it is only the four weeks).

There is speculation that the exact wording of the ruling may not apply to some commission schemes, but that is a debate in the wind until someone comes up with one that is upheld in law as fair. Until that time, employers who claim to have such a scheme are dicing with a tribunal claim. Which, if the employer says it doesn't apply, is your only way of enforcing it.

Tripledrop

A very belated thanks for this post.

I left that company 2 months ago, so I am considering writing to them and asking for the money I feel is owed.

I will try to work this out using the 12-week rule you mentioned, however will probably need to contact them to find out the dates I had leave!

Is there any advice for going about this?

Also, if they refuse, what would be my next step? Small claims court? Not sure how a tribunal would work...

Anything else I should be aware of?

Cheers

TD

Tripledrop

Well I spoke to ACAS today, and apparently in order to claim through tribunal this needs to be done within 3 months of the last disputed annual leave payment, and since I left that company 4 months ago, I think this route is now counted out for me?

The lady on the phone said I could consider small claims.

Does anyone have any experience, knowledge or advice on this sort of claim?

Undervalued

Tripledrop wrote: »

Well I spoke to ACAS today, and apparently in order to claim through tribunal this needs to be done within 3 months of the last disputed annual leave payment, and since I left that company 4 months ago, I think this route is now counted out for me?

The lady on the phone said I could consider small claims.

Does anyone have any experience, knowledge or advice on this sort of claim?

Whilst you can make a claim in the small claims court for contractual matters (like non payment of wages) they are not empowered to make employment decisions that would normally be the remit of an employment tribunal.

There is no hurry as the time limit for small claims is six years (five in Scotland) but you do need to be certain they have the jurisdiction otherwise you will be wasting your fee. I can't give you a definitive answer to that, maybe somebody else can?