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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44874
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I was made redundant last Wednesday and told I would have one

Customer Question

I was made redundant last Wednesday and told I would have one month's notice, I've only been there a year so that is correct.
I was earlier paid some commission on jobs that I had brought in to the company, some of these jobs are now not being delivered for various reasons and the company has told me they will now recover the commission on these jobs from my final salary.
The commission scheme was not part of my contract of employment and I never signed anything regarding the commission scheme, do they have the right to recover this money?
Submitted: 1 year ago.
Category: 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. can you tell me have you been working with this commission scheme since you started you job please.
Customer: replied 1 year ago.

It was supposed to be in place when I started (Oct 2014) but they dragged their heels and it only got put in place in August this year, so only one payment was made under this scheme and now they want it back

Expert:  Ben Jones replied 1 year ago.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. 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.
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. if the employer tries to deduct these payments from your final salary then it will most likely 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.
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
Customer: replied 1 year ago.

Thanks Ben, one quick follow up, this paragraph is in my contract, does it mean I don't have a claim?

Deductions from Pay
The Company reserves the right to require you to repay monies owed by deductions from salary or other method acceptable to the company:
For reasons of overpayment (statutory or discretionary) whether made by mistake or through misrepresentation; upon termination of employment for holiday paid to you in excess of accrued entitlement; any other sums owed to the Company including but not limited to advances, loans or relocation expenses.
**Any losses sustained in relation to property, or monies of the Company, client or other employee during the course of employment caused by negligence, recklessness or breach of the Company rules or any dishonesty on your part.

Expert:  Ben Jones replied 1 year ago.
Thank you for your response I am working in a tribunal today. I will review all the information you have just got back to me with
and get back to you later in the day with my advice on how to proceed with this.
please do not respond to this as this may push your question to the back of the queue and you may experience delays.
Expert:  Ben Jones replied 1 year ago.
Hello and thanks for your patience. It would really depend on the nature of the payments – I know they were for commission due but the main factor is were they due to you or were they paid in error. If paid in error they would likely amount to an overpayment and as such the employer could deduct them from your pay, even if there was no clause in your contract. So it really boils down to your entitlement to these payments, whether they were genuinely due to you or if they were paid in error. Hope this clarifies things for you a bit more?
Customer: replied 1 year ago.

The commission wasn't wrongfully paid, it was properly calculated on the work I had brought in. The problem is that the company has since decided not to deliver all of the work and are claiming that I must repay the commission. As this is my final salary and I will then be unemployed I'm trying to stop them doing this but I'm not sure from your answer that I have a legal claim to do so.

Expert:  Ben Jones replied 1 year ago.
Can i clarify what would have happened had you remained working there and the work was not delivered - was there anything allowing them to take it back from you in those circumstances?
Expert:  Ben Jones replied 1 year ago.
Hello, not sure if you saw my initial query above - Can i clarify what would have happened had you remained working there and the work was not delivered - was there anything allowing them to take it back from you in those circumstances?

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