Told I’m paid double bubble so deduct my commission

Al1976

Hello everyone I’d really like some help please!

I am an estate agent and I was furloughed for three months from March.

I earn £25k basic and 10% office commission. During furlough the money I received altered amounts but I was grateful to be getting a wage and it was near or at the cap. 

When I was taken off furlough I was told my commission would continue as normal. I worked for close to a month until my next/first payslip came through after furlough. My employer had deducted £1250 from my commission. 

When I questioned it they told me it was because they had based my furlough amount on my average salary of 2019 (inc. commission) and used that when claiming through the job retention scheme, therefore they weren’t allowed to pay me double commission. 

I worked they took 5k (added to basic to take me to max furlough claim for me) commission % 12 x 3 to work out what to take back off me on return.

So the government paid my salary for three months but then my company deducted my commission from me on my return and used the fact they included my commission  when they calculated the numbers for the job retention scheme using my average salary of 2019.

The commission was outstanding from before furlough and they agreed to pay me outstanding commission.
Hope that makes sense. Can businesses do this. Surely it’s abusing the scheme?

Thank you

Jeremy535897

If you have earned commission while working before you were furloughed, this should be paid to you. Your pay while on furlough may well be based on an average amount of commission, but this is for when you are not working. What they say is not correct. Ask them to show you where it says they cannot pay you "double commission". The rules only say an employee cannot pay less than 80% of reference salary(capped at £2,500 a month). There is nothing stopping an employer paying more.

This is a recurrent "problem" invented by employers where commission is paid in arrears, and becomes due when employees are on furlough.

Al1976

Thank you
I have questioned both the directors and they are not responding and telling me they don’t know what happened and put it on the poor girl in accounts. Even though the girl in accounts told me to refer to the directors when she issued my payslip.

I don’t know what to do next. They just go silent.

Jeremy535897

You could talk to Citizens Advice or ACAS. They can advise you what to do next. It depends on how far you wish to push it.

Al1976

I'm prepared to take it all the way, but I'm not sure if they have done anything wrong that could get them in trouble. 

Jeremy535897

The first point to make is that what they pay you, and what they may claim under CJRS, are two separate things. CJRS is calculated as 80% of your reference salary. What they actually pay you is per your employment contract as amended by any furlough agreement, and so long as the payment is at least 80% of your reference salary, then they can claim under CJRS.

I am assuming that your basic is paid monthly in arrears, and your commission is paid one month later? I am also assuming that they changed your employment contract while you are on furlough to reduce your pay to 80% of basic plus commission, as calculated by the guidance? Put simply, that would mean that however they organised payment of the commission, you would get an amount for each month. Assuming for simplicity you were furloughed from 1 April to 30 June, it could be done in one of two ways:

• keep paying the commission a month later, even though it is known in advance as it is based on past figures. You should therefore have received March's commission at the end of April, a deemed commission at the end of May, June and July, and July's actual commission at the end of August
• bring the deemed commission into line with basic pay, as there is no need to delay it as the amount is known in advance. You should therefore have received March's commission plus a month's deemed commission in April, deemed commission at the end of May and June, and no commission in July, as by 1 July you were back at work earning real commission, due end August.

In other words, either you should have been paid monthly for commission whether furloughed or not, or you should have got 2 months' commission in one month and none in another.