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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46227
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was working telemarketing company october and November.

Customer Question

I was working for a telemarketing company october and November. In october I earned commission about £450 and it is due to pay in novembers payday which is the last working day of the month. My contract is due to expire 27th November. Now my employer told me that they won't pay the commission I earned in October because I am not as an employee anymore on the payday? Can this be legal?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today. What does the contract say about the payment terms?
Customer: replied 1 year ago.
I believe it says only that the payday is the last working day of the month. I will be back home within an hour. I will check that amd get back to you
Expert:  Ben Jones replied 1 year ago.
ok thanks
Customer: replied 1 year ago.
I was trying to attach a picture of my contract but it does not swwm to attach for some reason
Customer: replied 1 year ago.
And just realised it did
Expert:  Ben Jones replied 1 year ago.
Thanks but that does not seem to deal with the commission payments, is there anything that does?
Customer: replied 1 year ago.
I'm afraid that's all there is about salary and bonus payments. There is mentioned employees handbook what clarifies details and that is saved in the company computer system and we can not get it out. Only read it. I could have a look at that tomorrow when I go to work, if there was anything else mentioned?
Expert:  Ben Jones replied 1 year ago.
If you could please that would help. I just need to see what details there are in relation to the payment of commission and what rights you have in the circumstances. Thanks
Customer: replied 1 year ago.
I will gwt back to you tomorrow woth more details. To be fair, I only saw this employees handbook this week when I already had resigned myself. I have one weeks notice what I left monday in written and I have a confirmation letter from my employer that my contract finishes this friday
Expert:  Ben Jones replied 1 year ago.
ok thanks we will continue tomorrow
Customer: replied 1 year ago.
Payday is monday so if I resigned monday with weeks notice, shouldn't it be considered to finish the following monday...? I really don't know how this works here since my previous workhistory has been in Finland since I have just moved to England in the begin of this year
Expert:  Ben Jones replied 1 year ago.
ok thanks
Customer: replied 1 year ago.
Hi. Here is attached all the documents. I have an email saying that I earner commission in october 127.17 % which would be 425 poundsThis is my managers reply to my my queston, why I am not paid the commission what I was entitled to get in octoberHi Tiina,Apologies, I had to leave before getting a chance to catch up with you. Following your resignation I am afraid you will not receive commission due to not being with the company when the payment is made. Unfortunately we also do not have the operational requirement to extend your contract to next week.Sorry to deliver this by email but wanted to inform you as soon as I could. I am happy to catch up with you tomorrow but I am afraid the stance will not change.DanHow does it look to you, would I have a case here ?
Customer: replied 1 year ago.
I also sent this to my manager but did not get an answer"I'm sorry, I don't mean to be difficult but one more question, just to make it more clear to understand.Is this mentioned somewhere in The TMC Bonus Scheme, Emploees handbook, contract or possibly somewhere else, so that I should have been aware of this before sending my resignation email?I was only mentioning on monday to James, that we are looking at relocating and moving to Bristol by the end of this year and I was advised by him to send my resignation by email ending this Friday, no mentioning about possibility to lose commission what I have worked for in October, by doing that.Therefore I feel, I haven't been given all the information required to make the decission about my resignation and I feel that losing £425 for that is a bit unreasonable"
Expert:  Ben Jones replied 1 year ago.
Thank you. To be honest I can see nothing in the terms which says that you must be employed at the time the bonus becomes due for payment for you to receive it. When it comes to workplace bonuses, there are two main types: contractual or discretionary. There can be an overlap where a contractual term gives the employer discretion over payment, or there can also be further sub-categories, for example performance-related bonuses or bonuses payable subject to other conditions. What is certain is that the legal issue of bonus eligibility is a rather complex matter and would mainly be subject to interpretation of individual circumstances and the wording of the clauses in question. A common example is a bonus clause which is contractual but which gives the employer the discretion to decide whether it would be payable or not. This is also a situation which would cause most disputes between employee and employer. Whilst at first glance this may give the employer full discretion as to whether the bonus should be paid or not, this will not always be the case. If the eligibility to a bonus is based on performance criteria then first of all if an employer is required to form an opinion of an employee's performance they must do so in good faith and be fair. Any other performance criteria would usually be determined based on qualitative data. Assuming the performance conditions have been met, an employer will rarely be able to refuse payment of the bonus as doing so would be acting in bad faith and considered unfair. So this is an example where the employer's discretion is removed once the relevant eligibility conditions have been satisfied. It follows that even though a bonus clause may be described as being entirely at the employer's discretion, there are circumstances, mainly in performance-based eligibility, where this discretion is removed and the bonus would automatically become payable if the eligibility criteria have been met. In your case you are looking at the commission having been earned in the month of October and you fulfilled all criteria and met the required performance so you should still be paid this even if you are no longer there when it becomes payable. This is your basic legal position. I have more detailed advice for you in terms of the steps you need to follow should the employer decide not to pay you, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46227
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.
Thank you very much for your answer. I would love to carry on with this and learn more about the steps I can and should be taking with this matter
Expert:  Ben Jones replied 1 year ago.
Thanks for the rating. The following is really something that comes into play if the employer has refused to pay you as they should. It would potentially amount to an unlawful deduction from wages, which is made illegal under the Employment Rights Act 1996.
Under law, an employer can only make deductions from, or withhold an employee’s wages in the following circumstances:
• If it is legally allowed (e.g. to deduct tax);
• If it is to recover an earlier overpayment of wages made by the employer;
• If their contract specifically allows for the deductions to be made; or
• If the employee has given their explicit written agreement for the deductions to be made.
If none of the above exemptions apply, the deductions will most likely be unlawful. 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.
Hope this helps.
Customer: replied 1 year ago.
Hi. Apparently there was mentioning in TMC Bonus scheme about this. So therefore I can not do anything, can I?This is my managers response:
Hi Tiina,Apologies for delay in coming back to you.In answer to your question, yes this is mentioned in the bonus scheme.Please see page 5 point E under Additional Rules where it begins: ‘A bonus will not be earned or paid to any TMC who is under notice or leaves the Company at or before a payment date’.I understand your frustrations but unfortunately there is not any more suitable work for you so there was not the operational requirement for us to not accept your resignation and in turn extend your fixed term contract beyond this Friday.I wish you luck for the future.Kind regards,***** *****
Expert:  Ben Jones replied 1 year ago.
Yes I saw that but the argument was that there is an implied term of trust and confidence which should not allow the employer to deprive you of a payment you have genuinely earned in previous months just because you are a couple of days short of the payment date. Also relevant would be how well aware you were of these terms, were they made clear to you, were they just buried amongst policies and not made prominent.
Customer: replied 1 year ago.
Yes. They told me I would lose it after they asked me to do my resignation in written and had accepted it. Therefore they see that there is no obligation for them to pay it since I had resigned myself. I have given my response to management. We'll see what is their response
Expert:  Ben Jones replied 1 year ago.
Whether you have resigned or not does not make much of a difference here and the key is whether the relevant policy was clearly communicated to you. Still, you have nothing to lose by at least starting the steps mentioned above and putting some pressure on them
Customer: replied 1 year ago.
Employer is completely ignoring my emails. Paid for past 3 weeks full hours this Monday , no commission, and returned my P45 form. I have sent a reminder today and asked second time to get a copy of tmc bonus scheme agreement with my signature in it, which I know they do not have, but haven't got an answer. Should I put some more pressure and if so, what would be the most efficient way to do that?
Expert:  Ben Jones replied 1 year ago.
You could follow the accepted steps for dealing with court claims. You may skip any of the steps you have already done. Generally it is recommended that the process follows these steps:1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due.2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.

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