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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44421
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Below I've tried to summarise the key points and would

Customer Question

Below I've tried to summarise the key points and would welcome any initial advice / feedback.
I started working at a Peugeot car dealership as a trainee salesperson 23 years ago. My contract was a commission only contract and through my choice, has remained unchanged ever since. This is a high risk decision - if I don't sell I don't earn. I chose this contract as I believe it has made me more driven and focused on building a career within this dealership.
Over the years, I was given the option of changing my contract to a basic salary (up to £30K) plus commission. I always declined the offer as I had the earning potential to earn an uncapped amount.
For reference, I am the only salesperson in the company to have this contract. All other sales people have a salary based contract but have had the opportunity every year to change to commission only but declined due to its potential high risk.
In recent years the garage has been taken over twice as on going concerns. The second company bought the company on 1 March 2016.
As expected, the structure of my commission / targets has changed regularly / annually to reflect the company's business objectives / market and I have agreed to the change in commission as my earning potential has broadly remained the same.
On 25 May 2016 I received an email from HR indicating all contracts and pay plans are being standardised from 1 July 2016. On site consultations were proposed but never took place.
Full details of the proposal was sent to an old address.
On the 28 June my Dealer Principle asked if I would sign my contract and new pay plan. I explained that I hadn't seen them.
At this point he printed it and gave me a copy.
On 29 June I emailed HR stating that I didn't wish to sign the revised contract. They replied stating that its their obligation to provide a like for like on target earnings which they believe the pay plan does. They advised that should an agreement not be reached they will seek to dismiss the existing contract with an alternative being offered.
I tried to arrange a meeting with HR but was initially informed (via email) by my Dealer Principal that this wasn't possible as the HR Manager is on annual leave and that I will either sign the contract or not and that there is no discussions left. He offered a meeting with himself and stated in his email that this was acceptable. I emailed re confirming my wish for a meeting with HR and he replied that this would be possible on her return next week. I feel that they were prepared to implement these changes to my contract (which I refused to sign before 1 July) without appropriate consultation in a somewhat inappropriate manner.
I have bulleted the key reasons behind me not signing the revised contract below:
I do not believe I will have anywhere near the earning capacity that I currently do. I worked out like for like earnings for my past three months and the reduction in salary is significant e.g. up to c.41% in one of the three months.
This is life changing for my family and I as I earn in the region of £100K per year.
I've been committed to my career for 23 years and have consistently without fail, shattered every target presented to me
There are c. 75 sales people in the company and each year I sell more than double any other sales person and average significantly more profit and finance penetration than anyone else. For example, according to the Year to Date April 2016 Sales League I have sold the most cars (126 cars) throughout the 9 dealerships and made the company £143K. The second highest achiever has sold 77 cars and made £60K. Furthermore, I'm selling a brand of cars that has one of the lowest market shares of all the other dealerships! I have also won awards including a manufactures achievement award.
The revised plan has not been presented to me with full explanation and opportunity for discussion. I feel like the tone of some email correspondence has been unprofessional and disturbing
If I were to move to another dealership, I would loose a customer base built up over 23 years customer and my earning potential would be significantly less and would result in a complete change in lifestyle for my family (including change of school / house downside etc)
Submitted: 3 months ago.
Category: Law
Customer: replied 3 months ago.
is anyone working on my question as I'm worried about it?
Customer: replied 3 months ago.
is some one looking at this proposal?
Customer: replied 3 months ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Ben Jones replied 3 months ago.

Hello was the latest take over done under a law known as TUPE? Was that ever mentioned?

Customer: replied 3 months ago.
Not that I'm aware of. The company name remains the same. (Not sure if this has implications?)
Expert:  Ben Jones replied 3 months ago.

Thank you. What is clearly happening here is that your employer is trying to change your contractual terms and conditions. There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:

· Receiving the employee’s express consent to the changes.

· Forcefully introducing the changes (called 'unilateral change of contract').

· Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms.

If the changes are introduced without the employee's consent, then the following options are available:

1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.

3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.

Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above.

This is your basic legal position. I have more detailed advice for you in terms of the options you have on taking this further if no agreement can be reached with the employer, 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 is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44421
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 3 months ago.

Thank you. As mentioned this could potentially amount to constructive dismissal, which occurs when the following two elements are present:

· Serious breach of contract by the employer; and

· An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.

A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).

The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.

If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.

Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.

An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.

Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.

Customer: replied 3 months ago.
thanks for your response,it really feels like which ever way its going to be a problem.
The emails that i have had from HR and my dealer principle basically implied that you sign or your employment is going to be termanated in 12 weeks time.
Ive had no meetings with Hr or any member of staff to explain the new contract.
I'm not prepared to stay at the garage as the managers would make it to difficult to make money.
I want to leave as I'm bored and going to loose 38% of my salary and still work 7 days a week,not spending time with my family.
Every year i have my pay plan changed but i can still make the same amount of money.
Now they want to change my contract from £0 basic salary to £15000 which I've had for 23 years,
Then change my already pay plan to imposable,i i feel breaking the FSA regulations,and having to achieve way above national average percentages.
The company was doing badly when they took it over but i was tripping my unit targets and smashing finance penetrations.
Im not a manager,so i was doing my very best to make money for the company.
I work with 4 offer sales executives and they get make in a month £5000 and get paid £3000 not achieving any target.
And i made last month as a example £43000 and made £8000 for myself.
Thats my defence and have prof of these figures.
The owners are know for just paying people off and not keeping to the legal route.
So what do you think my chances are of getting paid off and how much could i get?
Thanks Danielwhat should i do?
Expert:  Ben Jones replied 3 months ago.

Hi Daniel, regardless of your rights, you cannot force the employer to act in the way they should or be fair in the circumstances. So in effect only a tribunal can decide what is fair and what you should be compensated in the event it is found the employer had acted unfairly.

This does not stop you from trying to negotiate some kind of a pay off though. As mentioned you can approach them to try and discuss a settlement agreement. The issue of advising what you can get is that no one can predict that – it is only going to be what the employer is willing to pay and what you are willing to accept. In terms of what a tribunal may look at compensating you for it would be a basic award, which is calculated in the same way as the statutory redundancy payment (you can calculate that by searching for a redundancy calculator online), and a compensatory award which is compensation for loss of earnings. So you would be looking at how long it has taken you or it may take you to get a similar paid job and be compensated for the losses in between. There is however a cap of around £75000 so it will not cover an indefinite period.

Customer: replied 3 months ago.
Im sorry for contacting you again.
But because they have put me on the new contract from the 1st july should i send a email explaining that I'm working under protest for constructive dismissal.
if i don't and keep working am i accepting the new contract?
Thanks Daniel
Expert:  Ben Jones replied 3 months ago.

Yes you need to accept the new contract but state that you are doing so under protest and try to resolve this via the grievance route. If that does not help then you need to consider resigning and going for the constructive dismissal option. Remember that to do this you need to accept the contract and resign as a result of being forced to accept the changes

Customer: replied 3 months ago.
Great advise thanks.
The Hr person is back this week so have the meeting and get them to confirm and put in email they are going to termanate my employment i sign unless i sign new one and then can i send you the email to confirm what i should do?
Should i in the meeting talk about my issues and mention payoff deals?
Can i ask for a large pay off if i don't work in the same town or tempt my customers away from the business in the so and so years?
Also mention the process has not been conducted properly?
Expert:  Ben Jones replied 3 months ago.

Hello i have replied on the separate thread you started

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