Hello, my name is Ben and it is my pleasure to assist you with your question today. Has she previously been paid this commission and if so how was that calculated and what was it dependent on?
PS: As I am just about to go offline I will provide my full advice in the morning, thanks in advance for your patience.
She has never been paid any commission and at no time have any terms for the payment of the commission been paid
sorry, meant to say "at no time have terms for the payment of the commission been made"
Thank you for your patience. Whilst the offer letter states that a commission plan will be agreed, this was never done and there is nothing to suggest that the employee was promised such commission would be paid at any time, at least not before the company's financial situation improved.
There are no written terms to suggest such a plan was put in place, there have been no previous payments made so she cannot claim custom and practice and no one else has been paid this in the past. So the evidence to make her entitled to any payment under it is minimal. From a legal point of view you would not be required to make any payment in relation to this.
However, if she is unhappy with this, it could prompt her to challenge the dismissal in the employment tribunal in order to try and seek compensation. Even if you followed the correct procedure for the redundancy, she cannot be stopped from challenging it and seeking the tribunal's opinion on whether it was fair. This creates a nuisance for you as you would then have a tribunal claim to try and defend and it will take up extra time and resources.
The only way to prevent such a claim from being made is to try and enter into a compromise agreement with the employee. This is basically an agreement where you pay them off to leave and in return they make a formal promise not to make any claims against you in the future. However, you would need to pay a few hundred pounds for a solicitor to advise her on the terms of the agreement and would also be expected to 'sweeten' the deal by paying her extra compensation for her to agree to this. In this case it would be the commission, or at least part of it. Whilst you would be making part of a payment you would not want to, it will bring you peace of mind that this is a clean break and that no further action can result against the company as a result of this.
The alternative is to refuse to pay the commission, proceed with the redundancy as originally planned but with the risk of her challenging this in the employment tribunal.
I would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you