Clarity please

miss_maden

Hello, I am wandering if you can help me, I work in sales(advertising). My staff and I get a basic wage and commission on targets we hit. My staff for example have to do 600pounds of sales to get 10% of this. I have to reach 6000 to get 2% of this , this has been included in our wages since we started working at the company,  my company has now furloughed us but saying our commissions are not to be included,  are we entitled?

daKlone

The guidance seems pretty clear:

"The amount you should use when calculating 80% of your employees’ wages is regular payments you are obliged to make, including:

• regular wages you pay to employees
• non-discretionary overtime
• non-discretionary fees
• non-discretionary commission payments
• piece rate payments

You cannot include the following when calculating wages:

• payments made at the discretion of the employer or a client - where the employer or client was under no contractual obligation to pay, including:
  • any tips, including those distributed through troncs
  • discretionary bonuses
  • discretionary commission payments
• non-cash payments
• non-monetary benefits like benefits in kind (such as a company car) and salary sacrifice schemes (including pension contributions) that reduce an employees’ taxable pay"

https://www.gov.uk/guidance/work-out-80-of-your-employees-wages-to-claim-through-the-coronavirus-job-retention-scheme#include

Are the payments you receive in your contract?

miss_maden

We don't actually have written contracts but we have to hit those targets to get our commission, where does this leave us

Semple

Without a written contract, or proof that these are non-discretionary commission payments, you're pretty limited with what you can do.

Have you asked your employer whether they deem the commission as discretionary or non-discretionary?

sharpe106

Sounds discretionary to me, if not in your contract.  

miss_maden

We dont have contracts but have to hit our targets

LilElvis

What do you have in writing regarding your commission structure?

miss_maden

LilElvis said:

What do you have in writing regarding your commission structure?

He makes us sign failure to hit targets will result in termination of contract 

Semple

miss_maden said:

We dont have contracts but have to hit our targets

Having to hit targets is the nature of a commission payment, but that doesn't prove that they're discretionary or non-discretionary. 

miss_maden

Semple said:

miss_maden said:

We dont have contracts but have to hit our targets

Having to hit targets is the nature of a commission payment, but that doesn't prove that they're discretionary or non-discretionary. 

What proves this

unholyangel

It would not be allowable under the scheme for your employer to reclaim but what your employer should pay you would depend on what you agreed to at the time of agreeing to be furloughed. 

The reason it wouldn't be allowable even if your contract did specify it because it is conditional upon you reaching a target. These are the conditions that must be satisfied (and it needs to satisfy all 4 steps) for it to be considered "regular" wages under the CJRS:

7.4 In paragraph 7.3 “regular” in relation to salary or wages means so much of the amount of the salary or wages as-
(a) cannot vary according to any of the relevant matters described in paragraph 7.5 except where the variation in the amount arises as described in paragraph 7.4(d),
(b) is not conditional on any matter,
(c) is not a benefit of any other kind, and
(d) arises from a legally enforceable agreement, understanding, scheme, transaction or series of transactions