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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48784
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have an email job offer from my company that states they

Resolved Question:

I have an email job offer from my company that states they will pay me a guaranteed commission payment for 3 months and it is a non nonrefundable draw, however in the pdf contract it says that if I resign within 12 months of my contract I need to repay this commission. I am looking to leave under the 12 months but I'm unsure that the initial email offer will stand and I will need to pay back my commission.
Can you advise me please
Regards
Louise
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
Expert:  Ben Jones replied 1 year ago.
Are you already working for them?
Customer: replied 1 year ago.
Yes I have been here 7 months
Expert:  Ben Jones replied 1 year ago.
ok just to clarify, you said that this was a "non nonrefundable draw", what was the exact wording please?
Customer: replied 1 year ago.
in the email 'verbal offer' it reads:100% Non-Recoverable Draw for the first 90 days.
Expert:  Ben Jones replied 1 year ago.
Do you know what standard practice with this employer is, has this benefit been given in the past and what their policy normally is?
Customer: replied 1 year ago.
This benefit is standard to all in our sales team but I have no idea if it has been applied when people have left. Can this email/verbal offer supersede the pdf contract that reads that it must be repaid?
Expert:  Ben Jones replied 1 year ago.
When was the pdf issued, was it before you started or afterwards?
Customer: replied 1 year ago.
It was before I started.
Expert:  Ben Jones replied 1 year ago.
ok thanks leave it with me please I will get my response ready and will reply later on today on here
Customer: replied 1 year ago.
When can I expect your response please?
Expert:  Ben Jones replied 1 year ago.
Thanks for your patience. When there are conflicting terms in separate documents, such as in your case, which term applies will be down to interpretation and in effect only a court can decide that. It will come down to a number of factors so at this stage it is simply not possible to guarantee which will take precedence. I can however discuss what a court would look at when considering this.First of all they would consider the intentions of the parties and what looks likely to have been intended. It could be argued that a contract would take precedence as it is the more official out of the two documents, but it is not as simple as that. For example, if you took on the job based on the non-refundable commission and then you were issued with a contract stating something different, the employer should have brought these changes to your attention as they would be important differences. It will also matter as to whether you were required to read the contract and signify your acceptance to its terms. Other relevant factors would be what the usual policy with this employer is and how it is generally applied. So you do have grounds to challenge this if the employer tries to claw this commission back, but as mentioned only a court can decide if they would be allowed to do so and if the contractual clause takes precedence over the offer letter one.
Expert:  Ben Jones replied 1 year ago.
This is your basic legal position. I have more detailed advice for you in terms of the options the employer has to recover this and your rights in turn, 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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Expert:  Ben Jones replied 1 year ago.
Thank you. There are two options here – one is to try and deduct this from your pay, the other is to make a claim in the small claims court to recover the money they think is due. To deduct tis from your pay there must be a specific and clear clause in your contract allowing them to do so, otherwise it would amount to an unlawful deduction of wages, something you can claim for in the employment tribunal. If they do not deduct this from your pay and ask you to pay it voluntarily and you refuse to do so, then they can try and take you to the small claims court. This is where the court will look at the factors I discussed earlier and where you can defend this by arguing your case. If you lose then you will not have to pay the employer’s legal fees as each side pays its own legal fees in the tribunal.