Commission payments, furlough and Covid unfair dismissals

Commission payments and furlough

A company recently decided not to pay commission to an employee who was furloughed. Commission payments were discretionary but there was no doubt that commission was related to sales performance. Commissions due to furloughed staff had been ‘deferred’ as a consequence of the pandemic with the expectation of payment in full on return to work. The employee was dismissed when the furlough scheme changed. Only a small proportion of commission due to him was paid. The employee succeeded in his Tribunal claim for unauthorised deduction from wages. The Tribunal concluded that the commission scheme was discretionary but that there was still a contractual obligation to exercise that discretion rationally and in good faith. The employer had acted capriciously and failed to establish rationality and good faith. This serves as a useful reminder that uncertainties and fears created by the pandemic do not change the fundamental law which applies to employment contracts.

Ill-health dismissals and medical evidence

An employee had three distinct medical issues including brittle asthma and a blood clotting disorder. Both caused significant symptoms and required on-going treatment. The employee was frequently absent from work as a result. A GP report from late 2015 said that she was fit to work subject to unpredictable asthma related absences. An Occupational Health report in early September 2016 also said that the employee was fit to work subject to the same asthma related risks and that attendance rates in the last 12 months were indicative of future attendance. The employee had been absent for 34% of the working year in 2016 much of that was in fact attributable to the blood clotting disorder. A welfare-capability meeting took place on 10th January 2017. The employee had been at work for a sustained period of time by then and had changed her medical team and expressed the view that her conditions were better controlled. She was dismissed on 11th January 2017 on the basis that her periods of absence were unpredictable and unacceptable.

The Employment Appeal Tribunal was highly critical of the employer’s decision-making at the time of the dismissal. Remember that the burden is on an employer to take reasonable steps to ascertain an employee’s medical condition and prognosis before dismissal. The employer relied on historic medical evidence which had not addressed the impact and effect of multiple conditions. That evidence was also ignorant of increasing attendance levels and changes to the employee’s medical team and treatment regime. These were highly relevant factors, and the employer should have sought up-to-date medical evidence. Please remember your decision-making is only as good as the evidence upon which it is based. Your evidential platform should be accurate and secure!

Covid-19 and automatically unfair dismissal

The employee, an Italian IT engineer living and working in London, started working for his new Wigan based employer on 17th February 2020. He asked for a two day holiday in Italy on 9th and 10th March 2020 which was agreed verbally. The employee confirmed the agreement by email. There was no reply. The employee was due to fly to London on the morning of 10th March 2020. Late on 9th March 2020 Italy was placed into lockdown. The employee contacted his employer from the airport on 10th March 2020 explaining the situation and specifically that he was concerned about the public health risk and the need to self-isolate for 14 days on return. The employee wanted a clear instruction that he was to fly if possible. He was simply told that he had failed to complete the required holiday request form and that cover was being sought for his absence and that remote working was being explored. The employee continued to work from home in Italy. There were no further instructions about what he was to do. On 11th March 2021 the employee was dismissed on the basis that he was absent without leave. The Tribunal concluded that the employee had in fact been automatically unfairly dismissed because he had taken steps ‘in circumstances of danger, which the employee reasonably believed to be serious and imminent, to protect himself from danger’. Remember, safe decision-making is required for all employees regardless of length of service.

The information contained in the above article was correct at the time of publication. To ensure you are kept up to date with changes to employment law matters, click here to sign up to our dedicated employment database.

Learn more about Rebecca

All the articles above are written by our Partner & Head of Employment Rebecca Dennis. Rebecca’s professional background is unique in that she worked for more than 20 years as a barrister providing legal advice, drafting and advocacy for her clients and more recently provided specialist trouble-shooting services on employment law and employee relations at a leading international HR outsourcing company.

What Rebecca doesn’t know about Employment Law really isn’t worth knowing.

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