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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47863
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I recently left my job whilst still in my probationary

Resolved Question:

Hi, I recently left my job whilst still in my probationary period as I found the company and working environment totally unprofessional. I was on a basic salary of £15k with commission paid on top of that each month. Whilst employed I earned £1161 in commission which my former employer is refusing to pay stating that commissions are paid at the discretion of the directors.
As they have paid monthly commission each month since the companies inception just over 4 years ago can they do this ?
Many thanks
David
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello what did your contract say about this?
Customer: replied 1 year ago.
It had nothing on my contract but was stated in the company handbook. Despite it saying this they have paid all commissions each month for over 4 years and the only reason they are not paying me is because I left. I have a commission sheet showing that this money has been earned.
Expert:  Ben Jones replied 1 year ago.
Thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. When it comes to workplace bonuses, including commission payments, 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. This is your basic legal position. I have more detailed advice for you in terms of the steps you can take to pursue the money owed to 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, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
Hi Ben, yes I would like to know what steps are available to me as long as there is no further charge as I'm currently £1161 out of pocket.
Many thanks
Expert:  Ben Jones replied 1 year ago.
Thank you. This potentially amounts 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:{C}· If it is legally allowed (e.g. to deduct tax);{C}· If it is to recover an earlier overpayment of wages made by the employer;{C}· If their contract specifically allows for the deductions to be made; or{C}· 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-tribunals2. 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: ***** ***** 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.