My employer is charging me £2k to leave the company

bradders1983

Far too round an amount to be annual leave related. Plus the timespan in the original message is longer than one year.

freddykan

Just to provide some further context, it's an events company, and I was paid commission for 2019/20 financial year (Sep - Oct) for sales related to events taking place in 2020. These events were subsequently cancelled due to COVID, and the revenue was either refunded to customers or transferred to 2021.

The business are saying the £2k refund is a result of these events being cancelled and me leaving prior to March 2021.

freddykan

It was put sent in a letter in April 2020, however this obviously doesn't factor in that I've subsequently been furloughed, had a reduced income and needed to mitigate my own circumstance by finding alternative employment. 

Jeremy535897

Based on the details given, it is clear that:

• the repayment relates to commissions, not holiday
• the repayment is in respect of past commission payments, not future commission payments
• the commission scheme is described as discretionary, and the employer has stated this clearly

The payment in October, which related to sales in May/June, presumably arose from sales made by others, as OP has been on furlough "for months". These would not have been refunded to the employer under CJRS, because the scheme is discretionary.
Having said that, merely labelling a commission scheme as discretionary does not necessarily make it so (Kent Management Services Ltd v Butterfield for example).

I think the employer's main problem here is that if OP did not agree to this change in employment terms, the collection of the £2,000 by deduction from wages may be unlawful. See https://www.acas.org.uk/check-if-your-employer-can-make-deductions-from-your-wages

freddykan

Jeremy535897 said:

Based on the details given, it is clear that:

• the repayment relates to commissions, not holiday
• the repayment is in respect of past commission payments, not future commission payments
• the commission scheme is described as discretionary, and the employer has stated this clearly

The payment in October, which related to sales in May/June, presumably arose from sales made by others, as OP has been on furlough "for months". These would not have been refunded to the employer under CJRS, because the scheme is discretionary.
Having said that, merely labelling a commission scheme as discretionary does not necessarily make it so (Kent Management Services Ltd v Butterfield for example).

I think the employer's main problem here is that if OP did not agree to this change in employment terms, the collection of the £2,000 by deduction from wages may be unlawful. See https://www.acas.org.uk/check-if-your-employer-can-make-deductions-from-your-wages

Pretty much all correct, except the point about sales made by others. I was furloughed in June.
The employer is arguing that because the commission was paid on subsequently cancelled events, they have the right to recoup all commission payments from employees. However, they are only looking to recoup a portion to protect the financial integrity of the business.
What constitutes acceptance of a change to employment terms? I was sent the information and didn't contest it at the time. Does that mean I accept it by compliance?

Galloglass

What constitutes acceptance of a change to employment terms? I was sent the information and didn't contest it at the time. Does that mean I accept it by compliance?

Yes

Jeremy535897

 "In previous cases where a change to the employment contract did not have an immediate effect on an employee, the courts decided that the fact that an employee didn’t object to the change did not mean they were then bound by the contractual term. If this happens to you, you should make it clear to your employer now that you did not agree to the change, and that you continuing to work was not an agreement to the change. You should also seek legal advice."

From https://workingfamilies.org.uk/articles/the-law-when-an-employer-asks-you-to-change-your-hours/

MattMattMattUK

freddykan said:

What constitutes acceptance of a change to employment terms? I was sent the information and didn't contest it at the time. Does that mean I accept it by compliance?

You might find that is irrelevant. If your existing commission agreement contains a clause for rescheduled or cancelled events (when I used to run events commission was payable after the event, not upon booking) then they might have a route to recover that commission via your preexisting contract.

freddykan

MattMattMattUK said:

freddykan said:

What constitutes acceptance of a change to employment terms? I was sent the information and didn't contest it at the time. Does that mean I accept it by compliance?

You might find that is irrelevant. If your existing commission agreement contains a clause for rescheduled or cancelled events (when I used to run events commission was payable after the event, not upon booking) then they might have a route to recover that commission via your preexisting contract.

I thinks that's almost certainly the case to be honest. I don't think contractually I have a legal case. My only option is to negotiate the position, citing lots of relevant factors and hope for the best. Not sure if I can argue that it is unenforceable due to restraint of trade and breach of the principle of free movement of workers as it penalises employees for leaving.

MattMattMattUK

It would not be covered by restraint of trade or free movement, they only really relate to restrictive covenants and non-compete clauses.

You can of course argue with them, but a better position may be to ask for pay in lieu of notice, but with that money used to pay the commission back, then start your new job earlier than originally planned. That would probably work for both as otherwise they will likely be paying you on gardening leave anyway.