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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45340
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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There, I am looking advice with regards ***** *****

Customer Question

Hi there,
I am looking for some advice with regards ***** ***** of commission whilst on gardening leave, please see details below:
I resigned from my current job on the 13th May 2015 and had a 3 month notice period that I was prepared to work. The company director put me on gardening leave for the three months and my last day will be 13th August 2015 due to there being a conflict of interests (I'm joining an opposition company)
I received a letter from the company stating that they were putting me on gardening leave laying out that I couldnt work, had to make myself available etc. and they also stated that I would only get my commission paid up to and including the 13th May.
(My commission is paid quarterly in arrears and is a percentage of invoiced profit)
I have checked the Gov.co.uk website and am of the understanding that I'm still entitled to full pay and any contractual benefits during the time I'm on gardening leave.
If this is the case, I should get any commission due to me for clients that I have been dealing with up until my last day of notice, being the 13th August.
My question is such: Do I have a claim on the commission from the 14th May upto the end of my notice period? Or should I cut my losses and walk away?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Does your contract say you can be placed on garden leave and also does it deal with the payment of commission if you are on garden leave?
Customer: replied 1 year ago.

Hi Ben,

As far as I know there isn't anything in the contract regarding gardening leave. There certainly nothing about the payment of commission whilst on gardening leave. I will have to check the document and let you know. Can I let you know during the course of tomorrow?

Cheers

Stuart

Expert:  Ben Jones replied 1 year ago.
Hi yes certainly you can get back to me any time. I may not necessarily be around to answer immediately as I am in tribunal next couple of days but will respond as soon as I can thank you
Customer: replied 1 year ago.

HI Ben,

Please see the conditions regarding termination in my contract below:

10a) The minimum notice of termination of your employment you are entitled to recieve is three months. The company reserves th right to pay salary in lieu of this notice period

10)b The amount of notice you are required to give the company of termination of your employment is three months.

That's it! no mention of gardening leave at all.

All I got from them was a letter stating you are on gardening leave, you can't contact clients, do other work, come into the office etc. And we will only pay your commission upto the date of resignation (13 May)

There has also been a sales rep in the past who have received their commission upto their termination date, which makes me think they are trying to single me out due to the fact I am leaving to go and work with the opposition.

If you need anything else, please let me know.

Kind regards

Stuart

Expert:  Ben Jones replied 1 year ago.
Hello Stuart, the first thing you need to mention to your employer is that by placing you on gardening leave when there is no such right in your contract they are actually acting in breach of contract. With no such right they are preventing you from earning commission which you would have had they allowed you to work your notice period out as normal. So if they are now trying to impose a rule which you are not bound by contractually and that affects your earnings then you may certainly challenge them over that clear breach of contract.
Secondly they are stopping your commission payments for a period during which you continue to be employed by them. Again, if there is no specific clause which states they can do that, then they are likely to be in breach of contract. You continue to be employed by them during the gardening leave period and you should remain to be treated in the same way as if you were continuing to work normally for them, including getting the commissions during that period. Unless there is a clear clause stating they can stop these payments then that would also be a breach of contract and can also amount to unlawful deduction of wages.
In order to try and resolve this, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow.
If the employer does not return the money as requested, the following options are available:
1. Employment Tribunal - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals
2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to: www.moneyclaim.gov.uk.
Hopefully by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45340
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Ben,

Thanks for the information. I have sent an email off to my director and await his response! If this matter does go to tribunal I would obviously need legal representation. Can you recommend how to go about getting representation, or should I just find someone in the area to represent me?

Thanks for all your help in this matter (other questions answered too!)

Regards

Stuart

Expert:  Ben Jones replied 1 year ago.
You can go on the Law Society website to look for local solicitor to you but in the end it is just a matter of looking around to see who is willing to take this on for you

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