Can my employer make me repay sales commission if I leave the business?

tb92

Due to the current crisis, my employer has stated that if sales staff leave the business between now and July 2021, we will have to repay any commission that we earn in this window. Commission is paid on a monthly basis and only once the customer has paid for the product. Can my employer ask for commission to be repaid if the customer has paid for the product and we have been paid the commission already? 

Undervalued

It depends on how the commission is structured in your contract.

If it is in effect a bonus then there is nearly always a clause saying it is "discretionary". If paid annually then bonuses are mostly withheld if you leave the company before a certain date.

If you have a hard and fast contractual entitlement to a commission, subject to certain terms and conditions, then changing this requires a change of contract. The problem is it is not as hard for an employer to change an employee's contract as many people imagine. 

If you don't agree and negotiation fails then they can simply impose the change. That gives you two options.....

Accept it (which is what you will be deemed to have done unless you positively reject it).

or

Resign and claim unfair dismissal (not constructive unfair dismissal under these circumstances despite you resigning).

If would then be for a tribunal to decide if the change was reasonable or not.

Xbigman

If you are talking about commision that has been earned AND paid it is no longer discretionary and your employer can't simply demand it back. There may be a clause in your contract that allows them to recover money from you in these circumstances, or this could be an attempt to add one. If the bonus/commision is a significant part of your income it is likely this would not be enforceable but only a tribunal could decide that. 

In these times you need to consider more than the law. Your employer may be running at a loss or maybe taking on significant debt to keep going through the Pandemic. In those circumstances locking in their employees and restricting commision is understandable even if legally dubious. How important is having a job to you right now?


Darren

Undervalued

A further thought....
The other problem here is what happens if they just go ahead and do it?
If you don't leave before July next year it is a non issue. However if you do then you are powerless to stop them from deducting what they claim is owed from your final pay. Unlike most other deductions, final pay can be deducted right down to zero to recover money owed to the employer.

You would have to sue them, if you felt you had valid grounds, to get the money back. If there was more commission than your final month's salary then they would have to ask you for repayment, which you could dispute if you felt you had reason to do so.