Mr R Marriott v Parking Ventilation Equipment Ltd: 1802183/2018
EMPLOYMENT TRIBUNALS
Case No 1802183/2018
Between
Mr R MarriottClaimantParking Ventilation Equipment LtdRespondent
Before
Employment Judge TraylerMr M Sellwood (instructed by Counsel) for claimantMr M Rudd (instructed by Counsel) for respondentDate 20 June 2018
REASONS
[1]The Claimant Mr Marriott complains of unfair dismissal, of a breach of contract by failing to pay for notice and of an unauthorised deduction from his wages by the Respondent’s failure to pay to him commission payments which he says were due.[2]The parties have agreed a schedule of issues to be determined by the Tribunal. These are recorded with the reasons I recited to the parties at the beginning of the hearing.[3]Firstly the Tribunal has to determine whether the Respondent broke the implied duty not to act capriciously in relation to pay, or by failing a duty to re-dress the Claimant’s grievance or was in breach of the implied duty not without reasonable and proper cause to act in a way which is calculated or likely to breach the implied duty as trust and confidence firstly by an email of 26 October 2017 and further by the failure to address the claimant’s written grievance.[4]In essence the complaint is that the respondent had immediately cancelled the Claimant’s rights to commission payments as provided in an agreement between the parties in writing, an agreement which had been carried out by the parties without difficulty since 1 January 2016 but amended in 2017. I have to determine what that agreement was as at October 2017.[5]Secondly the Tribunal has to determine whether the Claimant did resign because of a breach of the contract by the Respondent. The Respondent makes no issue of any delay by the Claimant in resigning but does dispute the reason for the resignation.[6]If the Claimant does show that he resigned as a result of a fundamental breach of contract by the Respondent this will be a constructive dismissal and the Tribunal would ordinarily have to determine whether the Respondent has shown the reasons for its actions to see whether it has shown a reason for the dismissal. The Respondent does not assert that there is any reason within Employment Rights Act 1996 section 98(1) or (2) and therefore there is no argument in that respect. If there has been a dismissal and the Respondent does not show the reason then the dismissal will be unfair and the Tribunal will not have to apply section 98(4) of the 1996 Act to determine whether the Respondent acted reasonably or unreasonably in dismissing the Claimant.[7]The Tribunal also has to determine whether the Claimant is owed any additional commission payments by the Respondent.[8]The relevant law in relation to constructive dismissal is primarily within section 95 Employment Rights Act 1996 which defines the circumstances in which an employee is dismissed. An employee is dismissed where the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.[9]There are a number of important decided cases concerning constructive dismissal and the circumstances in which an employee will be dismissed which are referred to within the latter sections of this statement of reasons for the decisions.[10]By section 13 of the 1996 Act an employer shall not make deductions of wages of a worker employed by him unless the deduction is required or authorised to be made by virtue of a statutory provision or relevant provision of the worker’s contract, or on the other hand if the worker has previously signified in writing his agreement or consent of the making of the deduction. For these purposes “wages” means any sum payable to the worker in connection with his employment including any fee, bonus, commission, holiday pay or other emolument referable to his employment.[11]The Tribunal heard evidence from the Claimant Mr Ryan Marriott, the Respondent’s managing director Andrew Martin Mowat and the Respondent’s sales director Mr Nevison George Loraine. I considered documents from a bundle agreed by the parties which were referred to in the witness evidence of the Claimant and Respondent and within the hearing. I make findings of fact in this matter on the balance of probabilities.[12]The Claimant Mr Ryan Marriott was born on 16 February 1986. Mr Marriott was employed by the Respondent Parking Ventilation Equipment Limited from a date in August 2012 until his resignation on 8 November 2017. At the time of his resignation Mr Marriott was a sales manager.[13]Mr Marriott had the advantage of a written statement of terms and conditions which in this case is termed a contract of employment and is dated 24 March 2016. Within that document Mr Marriott’s salary is stated to be £29,500 per annum. There is a further provision within a section headed “obligations on termination”. That “on Termination, however arising, you shall not be entitled to any compensation for the loss of any rights or benefits under any bonus or longterm incentive plan (commission) operated by Company in which you may participate”. The contract also provides for a post termination of contract restrictive covenant to protect the Respondent’s confidential information and business connections.[14]There is a statement that Mr Marriott is subject to the company’s disciplinary and grievance procedures as per the ACAS code of practice guidelines. The procedures are stated not to form part of the employee’s contract of employment.[15]Within the bundle at page 41A is an addendum to the terms of employment to include a sales commission scheme which ran from 1 January 2015.[16]However, there is a further scheme again recorded as an addendum to the contract of employment which is entitled “sales commission scheme 2016”.[17]The scheme rules are basically that a commission of 0.007% of an order value generated as secured by Mr Marriott would be paid to him. The scheme is said to be in place for 12 months starting 1 January 2016 and will be reviewed at the end of the financial year. There are other conditions concerning this so that for example commission is only earned if the project is one at a gross margin defined by the document and other conditions as to bonuses having to be calculated once any agent’s commission due is included in the costing of a project. The commission percentage will be paid on the basis that all projects are accurately costed and have a target margin figure of 35%. If the margin figure is less than that a commission would be paid but a full explanation would need to be provided to the directors. However, if the gross margin is less than 32% commission will not be paid.[18]The commission was paid in two instalments 50% on the date when a design is paid by the client and the remaining half when the project is complete and paid for.[19]It was common ground between the parties that because of the long gestation period of projects that commission would not be paid retrospectively should the employee leave the company. The long gestation period of projects which of up to two years in duration is common ground. Certainly, irrespective of payment by the client once the employee had left the company it is made clear in the addendum to the contract of employment as at 2016 and the same provision as included within the 2015 addendum and, as I have already recited, this is part of the contact of employment. There had been no divergence from the written terms agreed between the parties save that in approximately May of 2017 the Respondent agreed to the Claimant receiving an increase in his basic pay to £35,000, the commission remaining as before. In addition, Mr Marriott received an improved quality of company vehicle.[20]There is correspondence within the bundle dating from 3 March 2017 until 7 March 2017 during which some negotiation takes place before the final basic salary and commission is agreed. The Claimant put forward a suggestion that he would receive a commission of 0.005% and £40,000 basic salary or alternatively £35,000 with 0.007% commission. Thereafter the parties continued as before with the Claimant earning and being paid commission on a monthly basis in accordance with the terms which had been agreed. Mr Marriott in addition received his basic salary.[21]There is no dispute between the parties that the commission payments formed an important part of the Claimant’s income. Mr Loraine referred to it as a “famine and feast” situation by which commission payments varied from month to month. However, from the pay slips within the bundle and the agreed figures as to commission and basic pay which are written by hand on a copy of the P45 (page 139 of the bundle) for the year to 5 April 2017 Mr Marriott was paid a basic salary of £29,500 and commission of £13,498.53. Although thereafter his basic salary increased the commission rate continued as before as 0.007%. Mr Marriott has calculated this as the commission representing 31.39% of his income based on his salary of £29,500. Mr Marriott goes further and calculates the commission payable paid between May and July of 2017 as 43.34% of his salary. Either way the commission is clearly an important part of his income representing more than 30% of his emoluments from the Respondent.[22]The Respondent says that there had been discussions within 2017 as to a restructuring of the sales operation so that business development managers would be appointed. There had been a dismissal of one employee and the retirement of another senior employee within the sales department. The Respondent has a holding company based in the Netherlands and some discussions had taken place between Mr Loraine and the holding company in October 2017. These discussions were not communicated to Mr Marriott. The Respondent’s evidence was that there had been discussions within the office as to the potential for the Respondent to change its salary and commission arrangements and replace them with a bonus scheme of some description. If any discussions had taken place of which Mr Marriott had been part they did not in any event go into any detail as to what payments might be received. My finding in this respect is that there were no detailed or other discussions as to what future arrangements might be made for Mr Marriott’s remuneration after any restructure. It may well have been the case that another employee had his terms and conditions changed but his role was somewhat different to that of the Claimant’s. The Respondent made no reference in its witness statements to any discussions involving the Claimant which might mean that any subsequent communications between them should be viewed in a lesser light than now appears. I find on the basis that the Respondent gave no detail of this within its defence to the Claim nor in the witness statements that there were no such discussions and that the email of 26 October 2017 sent by Mr Loraine to Mr Marriott was something of a bolt from the blue in relation to his terms and conditions of employment.[23]The Respondent also made reference to the Claimant’s conduct in the workplace in relation to for example having other business interests and any inappropriate company information or information concerning relationships with women outside of his marriage on the Respondent’s computer system. Not much if anything was made of this in the submissions by the parties and I find that there is no evidence to conclusively show that there is any conduct by Mr Marriott which might cast any doubts upon his proper operation of his employment. To the contrary in other respects the Respondent gave evidence as to the fact that they valued him as an employee, that he had been well remunerated and that he had made significant progress within the company including promotion and increase of salary and other benefits because of that recognition. There is nothing within the evidence that has been called within this hearing to indicate that the Claimant during the course of his employment conducted himself in such a way that for example the Respondent subsequent to his resignation found reasons that they might have reasonable grounds to dismiss him.[24]Turning now to the email of 26 October 2017. This is within the bundle at pages 79 to 80 of the bundle. The email is timed at 10.46am on 26 October and was sent by Mr Loraine to Mr Marriott. The subject of the email is said to be the budget 2018 review. In the email Mr Loraine says that one item on the agenda for the budget meeting in Holland that week included a discussion on the new BDMs (Business Development Manager’s positions) that had been appointed recently and the sales strategies and targets they would be developing for the future. The email continues that being a finance driven forum discussions were biased mainly towards costs and ultimately the respondent’s ability to justify the salary and bonus/remuneration packages available for the roles undertaken given company guidelines, regulations and good practice. Mr Loraine continues that following comments by the European board as to the permissible incentive schemes officially available “please accept this email as formal notice from PVE directors on our intentions now to close the current Sales Commission Scheme introduced to you in 2016 with immediate effect”.[25]Mr Loraine continues in the email that as Mr Marriott knows he is away from the office for the next couple of days but that they could discuss the implications with Andrew (Mowat) and Laura “and the situation going forward with respect to any outstanding commission payments due, as soon as possible on my return”.[26]Mr Marriott is asked in the meantime if he could perhaps also spend a little time reviewing the current situation with regards the SIG account and what progress has (and can) be made for the future. Mr Loraine says he would also like Mr Marriott’s input on what targets/goals he thinks they should set him with regards to this role for 2018 and beyond.[27]On 30 October at 12.14 Mr Marriott sent an email to Mr Loraine acknowledging the email and requests that it is that “this is now resolved as a matter of urgency”. Mr Marriott states that the 18 November 2017 (his next pay day) being the date or this would lead to him being placed in unforeseen financial difficulties. He says that he has left the week clear and despite being required in Birmingham Wednesday by AM and RA he was available to discuss at any time. Mr Marriott asks that Mr Loraine confirms when they can meet.[28]Mr Marriott receives no reply to that email.[29]I find as a fact that after receipt of the email Mr Marriott explored his opportunities for employment with what on the face of it is a competitor of the Respondent, Nationwide Specialist Projects. The documentation in relation to this is at pages 81 to 83 which includes an email of 6 November at 17.53 hours enclosing a formalised job offer “as discussed” and hoping that Mr Marriott decides to join them. The offer of employment documents at pages 82 to 83 “confirms the main points of our offer” to include a starting salary of £45,000 per annum and the bonus scheme of 1% of project/order value. There is also provision for a car allowance, expenses and holidays.[30]The offer states that the company is happy to start Mr Marriott’s employment as soon as he is ready and hopefully by the start of 2018. Mr Marriott is asked to keep them abreast of developments and once he knows an anticipated start date they will begin to organise essential items that he will need to begin. The company states that they do appreciate that Mr Marriott has a few items to resolve from his current employment and the notice period he has to work.[31]Having received that offer Mr Marriott on 6 November at 21.18 sends a further email to Mr Mowat and Mr Loraine which is headed as being about a formal grievance – unforeseen commission cancellation. In that email Mr Marriott explains that he writes due to not being engaged in conversation despite asking for information verbally on four occasions. Mr Marriott states that his commission scheme was cancelled on 26 October without prior notice citing budgeting issues which he states is in breach of the ACAS code of conduct and that he seeks urgent clarification on what they will to resolve this moving forward. Mr Marriott points out that the first pay date since this calculation (18 November 2018) is fast approaching and he needs therefore to seek clarity at least a week prior to this date on a number of bullet pointed items. These are the composition of his salary moving forward, the amount of commission the Respondent intends to pay him from the backlog and if this payment will be made in full due to the unforeseen cancellation of his scheme, what role is intended for him in the future and what clause the Respondent has cancelled the scheme on. Mr Marriott concludes that he trusts the above can be resolved in the timeframe and should this not be the case he will have no other choice to seek legal advice. It is likely that Mr Marriott had already taken some legal advice on 6 November.[32]Mr Marriott receives no response from the Respondent and at 13.07 on 8 November sends with an email a letter of resignation. This is addressed to Mr Mowat and states that he is writing to inform him that he is resigning from his position as sales manager with immediate effect. He asks that the Respondent accept this as his formal letter of resignation and termination of contract. Mr Marriott says that he feels he is left with no choice but to resign in light of his recent experiences regarding a fundamental breach of contract, anticipated breach of contract and a last straw doctrine. Mr Marriott says that he considers this to be a fundamental breach of contact on the Respondent’s part. He states that he appreciates the time and energy which has been invested in training him and that he will all do his best to ensure a smooth transition on his departure. Mr Marriott asks for acknowledgment of the letter and offers to attend an exit interview if the Respondent wishes to have one. On 10 November 2017 the Respondent attends at the Claimant’s property and collects his company car and other documents and items from him.[33]By letter of 10 November Mr Mowat writes to Mr Marriott referring to his resignation email and pointing out his contractual notice requirement of three months. It is recited that on 6 November Mr Marriott had complained in writing about the expiry of the current commission scheme and asks that they clarify the position before 11 November. Mr Marriott says he was about to do this when Mr Marriott resigned. Any breach of contract is denied as at any breach so serious as to justify a resignation without notice. Mr Marriott is asked to state at once if he wishes to work his notice and that leaving without giving notice was a serious breach of contract.[34]Thereafter there is correspondence between solicitors acting for each party. Mr Marriott does not withdraw his notice to terminate his employment and ultimately starts work for the new employer from 9 November 2018, according to his schedule of loss.[35]I turn now to resolve the issues within this case as agreed by the parties.[36]First of all I determine what the terms of the contract of employment between the Claimant and the respondent were. In my finding there is an agreement that the Respondent pay to the Claimant a basic salary and commission in accordance with the summary of the terms set out above.[37]There is no evidence in this case that this was a discretionary payment by the Respondent. It is not described as being discretionary in any of the documentation and although Mr Loraine was of the view that it was discretionary and could be withdrawn he formed that view without consideration of the written terms or any of the history of the basis upon which commission payments had been made to Mr Marriott. The terms of the deal are set out in writing agreed between the parties as above.[38]In my finding the email sent by Mr Loraine on 26 October makes it plain that the commission payments previously made under the written agreement as extended between the parties into 2017 were being ended with immediate effect. That is the most striking statement within the email and the one which Mr Marriott says upset and disturbed him. He considered that the Respondent was withdrawing from an agreement they had made with him without notice and without prior consultation and on my finding that is what happened. I believe the evidence of Mr Marriott that he was upset and destabilised by this because as he says on the face of the email the commission scheme is being ended immediately some three weeks before the next pay day and therefore he would sustain a loss in income of approximately 31%.[39]I have considered the totality of the email to see whether the effects of those words as to immediate withdrawal are at all ameliorated by the remainder of the email. In my finding there is no such amelioration. The document simply states that there will need to be some discussion to consider the position going forward and Mr Marriott’s input is invited to that process. There is however no reassurance or assertion such as Mr Loraine now states that Mr Marriott would suffer no reduction in his income as a result of this process or that he would have any increase in his remuneration by introduction of a bonus scheme or increased basic salary so that his position at least remained as it had been up until that date.[40]A meeting is suggested and there is a relatively short time scale before Mr Marriott resigned. However, I have to assess whether the Respondent’s conduct at this point in time was a breach of the contract.[41]Conditions as to pay in an employment contract are fundamental terms. That needs very little explanation as it is clear law that the essential part of the employment relationship is that the worker provides work for the employer and the employer in return provides the remuneration. Those are the two basic parts of the employment contract and a refusal to abide by it with immediate effect is therefore a breach and a fundamental breach of a contractual term.[42]The Claimant refers to an implied duty not to act capriciously in relation to pay or alternatively a breach of the implied term as to trust and confidence.[43]Those are recognised fundamental terms of any employment agreement and here the Respondent has broken an express term of the contract by saying with immediate effect it is not paying Mr Marriott in accordance with his employment contract.[44]On the basis of the cases to which I have been referred to there is no duty in my finding on Mr Marriott to wait and find out the ramifications of the employer withdrawing part of his remuneration. Once there is a breach by the employer I do not believe there is any duty on the employee to wait and see what the effects might be of that before taking a view that he is no longer required to comply with the contract as the employer has already broken it in a fundamental way.[45]My finding in this case is that Mr Marriott having received that notification immediately sought alternative employment and was successful in doing so. The fact that this is a competitor of the Respondent makes it more likely that Mr Marriott, in accordance with his evidence, found this opportunity very quickly after the email of 26 October and quickly followed that up with a meeting with the potential employer which resulted in an offer to him that day which was confirmed in writing at 6 November.[46]In my view therefore the principal cause for the resignation of Mr Marriott, giving the Respondent albeit a relatively short period to respond to him in relation to his correspondence and grievance means in my finding that Mr Marriott resigned because of the breach by the Respondent. In terms of section 95 of the 1996 Act Mr Marriott is entitled to resign immediately and does so after a short period in which he does nothing to affirm the contract as broken by the Respondent.[47]One issue of concern which I have actively considered with the parties is whether Mr Marriott giving the Respondent an opportunity to respond to his grievance by at the very latest 11 November, one week before pay day, he has in some way affirmed the contract at least on a conditional basis. This might have an impact on the resignation of Mr Marriott in the period stipulated namely on 8 November rather than waiting till 11 November.[48]Only 1.5 days had elapsed between Mr Marriott setting this deadline and his resignation. My finding is that there is no affirmation of the contract by Mr Marriott in the true sense. He has not told the Respondent that he accepts the breach. He simply asks them to consider it by raising a grievance.[49]The breach by the Respondent remains and it is good law that it is not possible to rectify a fundamental breach of the contract without the agreement of the other party to it. Here Mr Marriott had not agreed and his continuing frustration led him to resign particularly because of the withdrawal of the commission scheme and the lack of any explanation from the Respondent as to what would replace it.[50]There is no assertion by the Respondent in this case that it has shown the reason it acted the way it did and that this is for a reason within section 98(1) or section 98(2) of the 1996 Act.[51]There is no argument for example that there is “some other substantial reason” for the Respondent in changing the terms as it did. Having said that if the Respondent had succeeded in showing such a reason I would then have had to apply section 98(4) of the Act and determine whether the employer acted reasonably or unreasonably in treating this as a sufficient reason for dismissing Mr Marriott. Given the Respondent changed the term with immediate effect and without consultation with Mr Marriott and there being no explanation forthcoming as to why it was necessary to immediately cease the commission scheme it is hard to see how the employer could satisfy the requirements to act reasonably.[52]It is therefore a moot point as to whether the Respondent has shown the reason for the dismissal in this case.[53]The Respondent having failed to show the reason for the dismissal the dismissal is therefore unfair and the remedy for that unfair dismissal will be determined at a subsequent hearing. The parties may well be able to reach an agreement in this in that the Claimant is now earning more than he earned when employed by the Respondent and therefore any compensatory award is likely to be of a limited amount and the basic award can be easily calculated by the parties.[54]As the respondent submitted whether there has been a breach of contract by the respondent depends upon the impact of the email of 26 October 2017. Mr Marriott had no knowledge of the nature of the talks in the Netherlands but he did know that a Mr Delahay’s terms and conditions had been changed, albeit his role was different to that of Mr Marriott. The respondent rightly concedes that Mr Lorraine made an error in assuming that the commission payments made to Mr Marriott were discretionary.[55]The respondent points out that the claimant and respondent were used, as in 2017 to take time over negotiations and that different propositions had been made and agreement reached. I find here however that there is a significant difference in that before any discussions took place the respondent unilaterally withdrew the commission payments. That is the impact of the 26 October email and it significantly reduced the claimant’s pay unless something replaced it.[56]It is true as the respondent submits that the claimant gave little time to the respondent to resolve the issue. My judgment on this is that the claimant is entitled when assessing his position after five years’ employment, to take a limited time without thereby affirming the contract by doing so. I find that for those few days there is no affirmation of the contract by doing so. Similarly, there is no conditional or temporary affirmation whilst a grievance is dealt with. The claimant makes it clear that he wishes to have the matter addressed at the latest a week before the next pay is due to him. This in my finding is no more than an employee after five years of employment considering his position in the light of the breach and the possibility of changing his employment. This is a scenario anticipated for example in Western Excavating below. I find as above therefore that the email in withdrawing the commission immediately is a breach.[57]The respondent also submits that even if there was a breach the claimant in fact left his employment because his had found another job and not because of any breach of contract by the respondent. It is true that a job offer was made in a meeting soon after the email of 26 October and confirmed in writing soon afterwards. My findings of fact are that on receiving the 26 October email Mr Marriott perceived the respondent as not abiding by its agreement with him and looked for new employment with a competitor. It is conceivable that one sales operator may appreciate the sales abilities of a competitor’s staff and move quickly to recruit him and I find on balance that is what happened here.[58]The respondent does not assert any fair reason for any dismissal find and I determine that none has been shown.[59]The claimant submits that as in Western Excavating (EEC) Ltd v. Sharp [1978] QB 761 that he is entitled to treat himself as constructively dismissed because his employer was guilty of conduct which is a significant breach going to the root of the contract, which also shows that the employer no longer intends to be bound by an essential term of the contract. The breach is alleged to be the 26 October email and there is no assurance to Mr Marriott save that “we can discuss the implications of this…etc”. It is pointed out that the claimant tried to resolve this without success. I agree with that analysis.[60]As the claimant submits, relying on Industrial Rubber Products v. Gillon [1977] IRLR 389 unilateral reduction of pay is capable of being a fundamental breach of contract and there is no obligation upon him to “wait and see” whether any reduction of pay actually results, Star Newspapers Ltd v. Jordan [1993] EAT/344/Ltd. Also as the claimant submits the email of 26 October represents capricious action in matters of pay as in FC Gardner Ltd v. Beresford [1978]. There is also a breach of the implied duty not without reasonable or proper cause to act in a way which is calculated or likely to destroy trust and confidence. As the claimant submits intention is not necessarily relevant as it is the likely effect and impact which is important here and in my judgment a breach is made out. This term as with the express term as to pay are by definition fundamental terms of the contract and therefore breach is repudiatory as in Varma v. North Cheshire Hospitals NHS Trust [2007] UKEAT/0178/07 and Ahmed v. Amnesty International [2009] ICR 1450.[61]There is no evidence that the claimant had lined up a job in advance of any commission removal by the respondent and I make the finding above that such was not the case.[62]I now turn to the complaint of unauthorised deduction from wages. In summary terms the wages as agreed between the parties include a payment of commission calculated on the basis of a number of factors which have been clearly identified and agreed by the parties and carried into effect with success over a period of over two years.[63]The terms of payment of that commission is equally clearly defined in that 50% of commission earned will be paid on the customer paying for the design aspect of the work it is purchasing and the remaining 50% of the commission being paid when the cost of construction is paid. This is anticipated at the time of the written contract of employment and the two addenda to the contract. The reason for the scheme is to avoid potentially what would be a claw back of commission should a scheme not go ahead or the customer as in one case had gone into liquidation and had not paid for work done. In addition the written material anticipates a long gestation period and for example it was agreed between the parties that completion of a job could take some two years. This is the reason why there is provision in the contract that should the contract of employment be terminated there would be no more commission payments thereafter. This is not a case in which the employer seeks to for example terminate or even forces the employee into resignation so as to disentitle himself to commission payments already due. This in my finding distinguishes the case from the decided cases to which the parties have referred me. A practical agreement has been reached that commissions are earned as the customer pays for the work but that payments will cease once the employment terminates for practical reasons including the gestation of the projects.[64]This is as the Claimant says submits a significant and onerous term of the agreement. However it has been flagged up both within the contract of employment and the addenda to it and therefore is and was well known to the Claimant.[65]The respondent submits that the clamant should not be allowed to pick and chose the terms of the commission agreement that suit him and reject the others. I agree. The entitlement to commission is clearly made out. My finding is that in April 2017 the parties agreed to amend the existing agreement as to the amount of basic salary and commission but left the other terms, including that as to termination and the ending of commission intact. There were business reasons for that and this is an express term dealing with commission and not bonuses. This distinguishes it from the case in Rutherford v Seymour Pierce Limited [2010] EWHC 375 (QB).[66]The claimant submitted that a new contract had been agreed from 2017 which did not include the term as to commission payments after termination. I do not agree. Instead I believe that the parties simply agreed a variation of some of the existing terms leaving the others extant. There was no need to agree further terms as to what would happen on termination of employment as these were already in place and well known to each party. I do not consider the term to be manifestly unreasonable as in Rutherford, above. The scheme was there for practical reasons, namely that commission payments could arise for up to two years after agreement had been reached.[67]Whilst it is true as the claimant submits that to allow the respondent to enforce the term as to termination could enable it to avoid liability for commission in the case of an unfair dismissal the two regimes are separate. As here, if there is an unfair dismissal and loss results this can and should be compensated under the statutory scheme rather than the contract being artificially amended to allow a commission payment. In this case, if Mr Marriott has loss as a result of the unfair dismissal it will be addressed at the remedy hearing.[68]The parties, having agreed a scheme which included this term in 2015 and 2016, would if asked by an officious bystander whether the term as to commission on termination was also agreed would both have answered, “of course”. The term though onerous was well known to both parties and provided certainty to the parties as to how the contract would operate rather than leaving commission to be calculated over a two years period after employment ended. There is a distinction to be made with Clark v Nomura International Ltd [2000] IRLR 966 in that longevity of employment was the qualifying factor in relation to a bonus entitlement. Here the position is different in that a cut off is clear and only arises if employment terminates in whatever way.[69]The parties confirm that as at the date of the last pay day 18 November 2017 the Claimant had received all commission payments due at that point. My finding is that under the contract of employment as amended there is no further entitlement to commission arising from contracts negotiated in any way by the Claimant and therefore there has been no deduction from his wages.[70]I have received no submissions in relation to the breach of contract complaint in this matter which essentially refers to the claim for notice pay. Having found that there has been a dismissal in this case and that there has been no ground upon which the Respondent has reached that decision which disentitles the Claimant to notice that breach of contract complaint succeeds in so far as it relates only to notice pay for a three months period in accordance with the contract of employment.[71]A remedy hearing will be arranged with the parties once they have received this Reserved Judgment.