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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 70200
Experience:  Qualified Solicitor
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I wanted to get some advice with regard employment law. I

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Hi there. I wanted to get some advice with regard employment law.
JA: Was this discussed with a manager or HR? Or with a lawyer?
Customer: I have not discussed this with anyone as of yet. I wanted to speak with a lawyer.
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: It does not recognise Unions. I am employed FT. I am a Sales Manager for a technology company.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Yes. The situation is this. After joinng the company in a role which was dedicated to targeting new business, which was a new approach for the company (all other roles had been a mixture of account management and new business in the past) I was promoted to manager and asked to recruit a new team with sole focus of winning new accounts/buisness. The role was ZBA (Zero Based Accounts) within their Corporate Accounts division. Other sales managers have a hibrid role of managing current customers and some new business. I was advised that the commission plan would be 5% profit on any deal signed as a manager and I would continue to be paid on the normal sales plan for any deals that I did directly. After delivering new logo business with £7m revenue and £1m profit for 19/20 I was owed £69K in commission but was only paid £15. They now want to put me on a new sales plan and after delivering my Q1 sales performance of 600% for service line 1, 250% of service line 2 and 93% of service line 3 they are only planning to payment £2.5K. The are also now saying that I won't be paid for deals I do direct and they are also backing away from "assumed profit" allocations for new business wins. It is a constant battle with them changing the goal posts. Yesterday they put the whole sales dept on risk of redundancy. I need some advise on my options.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Customer: replied 4 days ago.
Okay.

I'm sorry to hear of your situation at work. Please can you tell me what reason has your employer provided for making this offers to you and what does your contract say with regards ***** *****? Please also tell me how long you have worked there for and whether you had been furloughed at all?

Customer: replied 4 days ago.
They have advised that they now need to move me to the same plan as the other sales managers event the task I have been asked to do is different to the other managers. The new managers commission plan the are putting me on is not fit for my role for a number of reasons. First of all it is very profit sensitive and it is recongnised that new business often needs to be won at a loss while account management can be very profitable due to re-financing/leasing. Also it requires performance against target on a quarterly basis. New business performance is lumpy and much harder to hit quarterly targets. I have argued they should be annual. It is also capped where as my old plan was not. I need to check my employment contract but ultimately it does say commission is at the discretion of management. I have workd for Ricoh for just over 5 years and I have not been furloughed. I am one of 4 sales managers, 1 out of the 3 were furloughed.
Customer: replied 4 days ago.
What is the next step?
Customer: replied 4 days ago.
This is what is in my original contract......You shall be eligible for a commission with an OTE of £110,000.00 per annum, payable monthly in
arrears, in accordance with the employee handbook. The specific key performance indicators and
payment criteria will be provided under a Sales Pay Plan which forms part of your terms and
conditions of employment. You are to receive a guarantee minimum commission payment of
£2500.00 per month for the first 12 months.

Thank you. What the employer is doing is basically trying to vary your existing contract.

There are occasions when an employer may try and make changes to an employee’s contract of employment. If they wish to do so, there are a few ways, in which they can do it:

· Receive the employee’s consent to the changes.

· Give the employee the required notice to terminate their current contract and re-engage them under a new contract containing the changes.

· Simply force the changes through with no notice or consultation.

The following options are available to employees to challenge these actions:

1. If the employer forces the changes through, the employee can start working on the new terms, then write to the employer making it clear that this is done ‘under protest’. This means that they do not agree with the changes but feel forced to do it as they have no other option. In the meantime, they should try and resolve the issue by raising a formal grievance with the employer. This is only a short-term solution though as the longer someone works under the terms, even under protest, the more likely it is that they will eventually be deemed to have accepted them.

2. If the employer gives notice to terminate the current contract and re-engages the employee under a one, it could potentially amount to unfair dismissal. However, the employer can try and justify their actions if they had a sound business reason for doing so, usually from an urgent financial perspective. If no such reason exists, it is possible to make a claim for unfair dismissal in the employment tribunal, subject to having at least 2 years’ continuous service with that employer. This would be on the grounds that there has technically been a dismissal because the original contract was terminated by the employer.

3. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., it is also possible to resign and claim constructive dismissal. The employee must accept the changes and immediately resign in response to them. A claim is again dependent on the employee having at least 2 years' continuous service with the employer.

Please see here for some more information about this:

https://www.gov.uk/your-employment-contract-how-it-can-be-changed

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Customer: replied 4 days ago.
Thanks for the advise. One point. Does the company have an obligation to provide me with and updated contract of employment following my promotion to the new role of Area Sales Director?
Customer: replied 4 days ago.
None was received.

No, they are not. For example, the original contract could still stand, with unwritten changes to its terms to reflect the new position, e.g. change of title, salary, duties, etc

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