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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50476
Experience:  Qualified Employment Solicitor
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I have worked for IBM for the past 4 years. I was employed

Customer Question

I have worked for IBM for the past 4 years. I was employed specifically to sell one product and over the past 4 years have successfully sold this product. I have built up an ongoing sales pipeline of £1m per year, so I get regular commission payments each month from the ongoing business Im bringing in.My pay is made up of 55% pay and 45% OTE from commission.IBM have now, without any real consultation told me my role is going to change and I have to sell more products but to a new limited list of accounts, whereas my previous role allowed me to sell one product to 1000s of accounts.My contract does state that IBM can change my role in terms of taking on a new product range, and I dont have a problem with that. What I do have a problem with is that this new change means that Ive gone from having a secure pipeline (and ongoing commission) to zero pipline.This obviously has an immediate financial impact on me and my ability to earn, as I have to learn 4 new products and then go out and establish a new customer base and new pipeline from scratch.I didn't think it was legal for a company to make changes to your employment that could effect your ability to earn like this. Im sure IBM could argue that within 3 - 4 month I would have learnt the new products and started to make new sales, but that is going to leave a large portion of the year where I am not earning the 45% of my salary.Id like to know where I stand on this and whether its something I should be able to raise with HR and maybe a tribunal?
Submitted: 4 months ago.
Category: Employment Law
Expert:  Ben Jones replied 4 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 4 months ago.

So what reason, if any, has your employer provided for doing this?

Customer: replied 4 months ago.
They have simply decided to change not only mine but other sellers rolls. No reason has been given so the assumption is that its for business reasons that may be obvious to higher management but not to the sales people.
Expert:  Ben Jones replied 4 months ago.

Have you discussed the possibility of them offering an ongoing guaranteed payment to cover the drop in commission until you start earning similar amounts on the new products?

Customer: replied 4 months ago.
They will not offer anything like this. They are basically saying accept it or leave.
Customer: replied 4 months ago.
FYI, over the past few years I have achieved all my targets and even over achieved enough to be part of the IBM "100% club", so this is not like its me under achieving and this being a method or getting rid of me.
Expert:  Ben Jones replied 4 months ago.

Thank you. Whilst they do have the right to change your terms in relation to the products you sell, etc, they still need to ensure that this is done fairly and reasonably. There is still the requirement to preserve the mutual trust between employer and employee, which is something which exists in every employment relationship.

Therefore, if they do something which compromises that implied requirement and basically they act in breach of that trust, it can give you the right to challenge them. However, this is not easily done, generally these claims can only be made by resigning and making a claim for constructive dismissal.

The potential solution, which I mentioned, is that they at least consider providing some payments to 'bridge' that transitional period, which would reduce the effects this change has for you. However, if they flatly refuse to do this and just steamroll the changes through, all you can do is consider raising a grievance to challenge them internally and if that does not work, all you can do is consider resigning and pursuing the constructive dismissal claim.

It is worth mentioning that there is a possible alternative solution, where the employer is approached on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under such an agreement, the employee gets compensated for leaving the company with no fuss and in return promises not to make any claims against the employer in the future. It is essentially a clean break, where both parties move on without the need for going to tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. It just means that these discussions cannot be brought up in any subsequent tribunal claim and prejudice either party. So there is nothing to lose by raising this possibility with them as the worst outcome is they say no, whereas if successful it can mean being allowed to leave in accordance with any pre-agreed terms, such as with compensation and an agreed reference.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the steps you need to follow if you had to take this further to a claim. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Customer: replied 3 months ago.
Thanks for this.I feel I have a good case here, but I need to understand what the procedure should be to take it forward.Ive already had phone calls and meetings to discuss things and they aren't really changing things. I am at the stage where I want to formally (in writing) say that I am not happy and not wanting to accept these terms. How should that be done?
If I want to go down the route of having them pay me off to leave, what is a reasonable thing to ask that they consider? Loss of earnings etc?
Expert:  Ben Jones replied 3 months ago.

Initially you can consider raising a formal grievance, which is an internal complaint. Follow whatever grievance procedure is in place at work, or if one does not exist - it is a written complaint sent to your line manager, indicating you are raising a grievance. You then just detail what you are unhappy about and what you want the employer to do.

If you did seek some financial settlement then yes, it would be loss of earnings resulting from this change. Hope this clarifies?

Expert:  Ben Jones replied 3 months ago.

Hello, my response should be visible on this page. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 stars above. The question will not close and I can continue with my advice as discussed. Thank you

Expert:  Ben Jones replied 3 months ago.

Hello, not sure if you are having trouble seeing my posts? Do you need any further assistance or are you happy with the response to your query? I look forward to hearing from you. Thanks