Is anyone up on employment law????

[Smiffy]

Just after a bit of advice (sorry it's a bit long winded)...

I am currently working my four weeks notice period.
I handed my resignation in last Monday (9th) so officially my last day at work will be Saturday 4th Feb.
I am paid a basic plus commission for everything I sell (vehicles, finance and "add ons").
My contract clearly states that I am only paid commission on sales that I "see through to the end"....ie actually handover to the customer, and am paid this commission a month in arrears.
Usually in a sales environment like mine, when you hand your notice in the company will ask you to leave early and pay you your basic for the month, as you can (if you were that way inclined) do a lot of "damage" to sales whilst you are still there working your notice.
It is highly unlikely that my company are going to do this, as we are short staffed at the moment (due to another salesman leaving) and I am still selling a lot of cars.
But if, (if), my company decide to let me go early and effectively put me on gardening leave for the remainder of my notice period, are they allowed to withhold the commission for the deals that I would have been able to handover prior to leaving on the 4th?
I have quite a few deals that are planned to be delivered towards the end of this month, well within my official notice period.
As I say, I am quite prepared to work until the 4th and see these through.
Thoughts?

 

[sawtooth]

Just after a bit of advice (sorry it's a bit long winded)...

I am currently working my four weeks notice period.
I handed my resignation in last Monday (9th) so officially my last day at work will be Saturday 4th Feb.
I am paid a basic plus commission for everything I sell (vehicles, finance and "add ons").
My contract clearly states that I am only paid commission on sales that I "see through to the end"....ie actually handover to the customer, and am paid this commission a month in arrears.
Usually in a sales environment like mine, when you hand your notice in the company will ask you to leave early and pay you your basic for the month, as you can (if you were that way inclined) do a lot of "damage" to sales whilst you are still there working your notice.
It is highly unlikely that my company are going to do this, as we are short staffed at the moment (due to another salesman leaving) and I am still selling a lot of cars.
But if, (if), my company decide to let me go early and effectively put me on gardening leave for the remainder of my notice period, are they allowed to withhold the commission for the deals that I would have been able to handover prior to leaving on the 4th?
I have quite a few deals that are planned to be delivered towards the end of this month, well within my official notice period.
As I say, I am quite prepared to work until the 4th and see these through.
Thoughts?

No expert at all but I suggest if that's what your contract states then you will only get paid commission on deals that 'are seen through to the end' up to and including the 4th Feb.

Seems a bit silly because how motivated will you be to sell cars in your last month?

 

[Smiffy]

No expert at all but I suggest if that's what your contract states then you will only get paid commission on deals that 'are seen through to the end' up to and including the 4th Feb.

Even though I am prepared to stay and hand them over up to the 4th February though?
If they "ask" me to go early, that is their choice not mine.

 

[sawtooth]

Mmm if that's not covered in the contract then you might then be entitled to it. Perhaps try googling PILON to see if that helps at all.

 

[chrisd]

I would have that conversation with the boss " what exactly are you going to pay me at the end" there is no incentive to work if they deny you the contractual rewards especially as they are short staffed and rely on your integrity.

The law has changed a fair bit regarding people whose wages are regularly made up from overtime, bonuses, commission etc and, for those people, as I understand it, they are entitled to receive more than just basic pay for holidays and, more particularly for redundancy especially where gardening leave is involved.

I realise yours is a different case but if you were to be put on gardening leave you are still employed by the company and I'm sure you would enjoy the contractual rights just as if you sat behind your desk until the last minute of your notice and I'm convinced you would have a claim for any commission that you can prove you'd have earned had they not invoked a gardening leave. Also, why would you want to sell cars beyond a point where you won't "see it through" other than personal pride?

These are my views purely as a business man and not an expert in employment

 

[Rooter]

Smiffy, I am no expert, but same kind of job and have been through gardening leave etc. I have never been paid commission on deals that would have (or did) come in while it wasnt me that did the final bit of paperwork. Like you say, your place sound reasonable and are short staffed. I would sit your boss down and explain that while you are leaving, you are a sales professional and you are 100% committed to the end date and you want to earn your money.

Re the actual legal side, sorry mate, thats a proper minefield! Good luck!

 

[SocketRocket]

You should ask your employer so they are aware of your concerns, otherwise they may not take them into account.

The legal position will be associated with the terms of your Employment Contract and it's interpretation. If you believe you were treated unfairly or your contract was broken it would be fairly expensive and time consuming to take the issues to a tribunal. As I said speak to them and try to get a win/win situation.

 

[TheDiablo]

Is your Commission structure fully outlined in your Employment Contract? I know mine isn't - each year we sign up to a new Commission Plan outlining the specifics of we get paid. I work for a legal information and content provider and all my clients are law firms - can't promise anything and I'm certainly no expert but will see what I can do.

Not sure on the size of the company you work for, if small I would get this sorted directly with the decision maker.

 

[Smiffy]

Day off tomorrow so I'm going to give ACAS a ring to see what they say....

 

[SocketRocket]

Day off tomorrow so I'm going to give ACAS a ring to see what they say....

Probably 'What does it say in your Contract of Employment ?'

 

[mikevet]

Have a look at the Citizens Advice public website. There's tons of up-to-date info on all sorts of things, including a large section on employment-related topics. There are also links to other useful bodies, such as ACAS.

 

[Smiffy]

Probably 'What does it say in your Contract of Employment ?'

It states that I am only paid commission on deals that I see through to the end, which I accept.
But in the scenario I am explaining, they would not be allowing me to do so despite the fact I am able to. Like I say, I don't have a problem with staying until the 4th Feb and fulfilling my obligations.

 

[clubchamp98]

Day off tomorrow so I'm going to give ACAS a ring to see what they say....

Where I worked we had an ACP abnormal conditions payment.
If you were asked to do something that wasn't your normal job we could negotiate a one off payment to do the job.
if you sit your boss down and say you will accept a percentage of the final bonuses in your last weeks before you leave in a one off payment.
the rest of the cash can go to the guy who does the handover.
this still gives you an incentive to sell cars or go gardening.
60/40 always looks good but it's up to the boss.

 

[Val]

Work your notice regardless and see the sales through. They then can't hold anything back

 

[Smiffy]

Work your notice regardless and see the sales through. They then can't hold anything back

That's what I'm prepared to do.
But if they decide they don't need/want me there and effectively release me early, I won't have much choice in the matter.
I can't physically refuse to leave the premises.

 

[chrisd]

I used ACAS from the employers viewpoint a couple of times recently and found them very helpful, not that they gave me the answer i wanted but at least it wax the correct one.

 

[Smiffy]

I used ACAS from the employers viewpoint a couple of times recently and found them very helpful, not that they gave me the answer i wanted but at least it wax the correct one.

I have spoken to them before Chris, over matters of "bullying in the workplace" but this is different.
They may not be able to help me at all, and like others have said they may just say "refer to your contract" but my contract doesn't specify what happens in this situation.
It is just clear that you only get paid commission on deals you have seen through from beginning to end.

 

[chrisd]

But you're right in saying that you are being denied the commission by your employers tactic if they put you on gardening leave, my bet is they will say you are still entitled to the money, down side is that you might need legal action to recover it. Don't forget to gather proof of the deals that would earn the commission!

I take it you've new employment sorted?

 

[Smiffy]

But you're right in saying that you are being denied the commission by your employers tactic if they put you on gardening leave, my bet is they will say you are still entitled to the money, down side is that you might need legal action to recover it. Don't forget to gather proof of the deals that would earn the commission!

I take it you've new employment sorted?

I have mate.
My old sales manager (who I got on with really well) has offered me a place at the Peugeot dealer he has moved to.
Slightly higher basic wage and the commission structure is better.
I will be sorry to leave Nissan, and I am giving up 6 years of customer base and product knowledge for a step into the unknown with Peugeot.
Just a shame I've been put in this position by an ******** of a new manager.
One guy has left already and the remaining two lads are not happy.
But senior management, as usual, can't/won't see the bigger picture.
I don't want to go down the complaints route, it's just easier to say bugger it and move on.

 

[GB72]

First I should point out that this is not my area of law and so this is not gospel just an educated guess.
What is the procedure if you are away on holiday when a handover is due to take place as this should be the process that is followed. Garden leave does not mean that you have left the employment of the company, it is just that the company has sent you on compulsory paid holiday rather than have you work out a notice period. If the company wanted to cease your employment immediately then they would need to pay out your notice period and you would be free to start your new job immediately.
On that basis, the process that should be followed should be the same as if you were on a pre arranged holiday on the handover date.
The courts also seem more willing to imply a right to work in an employment contract as well these days. As such, unless the contract specifically grants the employer the right to put an employee on garden leave, it may be that you can decline it and insist on working your notice.
The alternative may be that you offer to take payment in lieu of notice, leave your job immediately and start the new one and get paid twice for the next few weeks.