Ms D Vosper and Ms S Sykes v Bellway Homes Ltd: 3200969/2022 and 3200970/2022
JUDGMENT
[1]The claim for direct sex discrimination brought by Ms D Vosper is not upheld and is dismissed.[2]The claims for unpaid wages brought by the Claimants are well-founded and are upheld. However, upon the Respondent having paid the sum of £901.25 (net of relevant deductions taken from a gross sum of £1,135.23) to Ms D Vosper on 29 July 2024 and the sum of £257.18 (gross) to Ms S Sykes on 29 July 2024, the relevant wages have been paid and no further awards arise.REASONS
[1]The Tribunal apologises for the delay in issuing these written reasons. In the first place, EJ Byrne did not receive notification of the request for written reasons made by Ms Sykes on 11 July 2025 (by email on the afternoon of the day of the delivery of judgment and oral reasons) until 28 August 2025, when he received notification of the request from Tribunal administrative staff by email. Secondly, pressure of other work since 28 August 2025 has meant that it has not been possible to provide these written reasons until now.[2]The final hearing took place largely on an in-person basis, save that one witness for the Claimants, Ms Kerry-Anne Hutchison, gave evidence remotely from New Zealand. Case management orders of EJ Massarella arising from a preliminary Case Numbers: 3200969/2022 and 3200970/2022 2 hearing on 19 March 2025 had confirmed that Miss Hutchison was permitted to give evidence remotely from New Zealand, there being no objection by the authorities in that country to voluntary participation in UK proceedings.[3]Evidence and submissions in the case were heard on 8 and 9 July 2025 by EJ Byrne, who sat alone. Deliberations took place on 10 July 2025 and the morning of 11 July 2025 and oral judgment was delivered in the afternoon of 11 July 2025.[4]It was confirmed at the outset of the case that the claims being advanced by the Claimants were those reflected in the list of issues set out in Schedule A of the record of a preliminary hearing issued by REJ Burgher in a preliminary hearing that took place on 16 January 2024.[5]On the first day of the hearing, the Tribunal heard evidence from the Claimants, first Ms Sykes and then Ms Vosper.[6]On the second day of the hearing, the Tribunal heard evidence from one further witness for the Claimants, Ms Kerry-Anne Hutchison. The Tribunal then heard evidence from a single witness for the Respondent, namely Ms Alexandra Philipson, who has been a Group Sales Manager for the Respondent since 2016. The Tribunal then heard closing submissions from Mr Frew, counsel for Respondent, and from Ms Vosper for the Claimants that included reference to written submissions on behalf of the Claimants and a position paper on behalf of the Respondent.[7]I will now set out the facts. Only findings of fact on material matters necessary for the proper disposal of the claims will be made.Findings of Fact
[8]Ms Sykes was employed by Respondent as a sales adviser on 17 February 2020 until her dismissal for misconduct on 21 December 2021. She was given four weeks’ pay in lieu of notice. While Ms Sykes makes the case that her dismissal was unfair, she accepts that her employment ended on 21 December 2021.[9]Ms Vosper was employed by Respondent as a sales adviser on 5 October 2020 until her dismissal for misconduct on 21 December 2021. She was given four weeks’ pay in lieu of notice. While Ms Vosper makes the case that the dismissal was unfair, she accepts that her employment ended on 21 December 2021.[10]There was heavy emphasis in the Claimants’ evidence at the final hearing concerning what they maintained was unfairness in relation to their respective dismissals. Given the list of issues to be determined at the final hearing, the Tribunal finds that much of that evidence was irrelevant. The Claimants were not entitled as a matter of law, or otherwise permitted by EJs who had case managed the claims extensively in advance of the final hearing, to advance claims of ordinary unfair dismissal or automatically unfair dismissal. As was noted on behalf of the Respondent in closing submission, the Claimants clearly feel aggrieved Case Numbers: 3200969/2022 and 3200970/2022 3 about the circumstances of the ending of their respective employments with the Respondent but, while this state of affairs is doubtless a disappointment to them, they do not have a legal remedy available to them in relation to their dismissals.[11]At the material time the Claimants’ line manager was Ms Amie Triphook-Cole, Sales Manager for the Respondent. Ms Triphook-Cole is no longer employed by the Respondent, having left her employment on 31 October 2022.[12]Both Claimants worked at the Fielders Quarter Division of the Respondent. It had an assigned opening date of 1 October 2019 but it was accepted in evidence by Ms Philipson that it did not, in fact, open until June 2020.[13]Mr Jack Barber was employed by Respondent as a Sales Adviser on 5 July 2018 in the Essex Division of the Respondent. There was a conflict in the evidence as to whether Mr Barber started working in the Fielders Quarter Division of the Respondent on 3 April 2020 or on 23 July 2020. In favour of a finding that it was 3 April 2020 are the following factors: The Respondent’s Sales Monitor system shows 3 April 2020 as his start date; A letter dated 8 September 2020 states that Mr Barber was entitled to commission on any plots reserved at Fielders Quarter, Barking from 4 April 2020, with an entitlement to claim 0.125% on the net value of the sale, the commission to be paid 50% on exchange and 50% on completion; The evidence of Ms Philipson that it was possible for sales advisers with Respondent to hold coincidental employment with two or more divisions of Respondent in order to protect their commission payments; The Covid-19 pandemic, which began in March 2020, which affected the visibility of employees working in various divisions of the Respondent; The Respondent’s position that the dating of Mr Barber’s contract of employment as 23 July 2020 related only to the fact that certain members of Respondent’s HR department were on furlough for the initial months of the Covid-19 pandemic and that it was not until July 2020 that they had a chance to catch up on the issuing of contracts of employment that, in fact, had an earlier start date.[14]In favour of a finding that Mr Barber’s employment began on 23 July 2020 are the following factors: Ms Skyes’ evidence that, as far as she was concerned, Mr Barber was not working at the Fielders’ Quarter Division until in or about August 2020, which was when she returned to work from a holiday and at which point she had to engage in a handover procedure with him; Case Numbers: 3200969/2022 and 3200970/2022 4 A contract of employment indicating on its face that Mr Barber did not start working at the Fielders’ Quarter Division until 24 July 2020; The evidence of both the Claimants that the motivation for giving Mr Barber an incorrect start date of April 2020 rather than July 2020 was primarily Ms Triphook-Cole's desire to attract Mr Barber to the Fielders Quarter Division as a friend of hers and someone she liked as a replacement for a male member of staff she did not like - assigning an earlier start date to Mr Barber gave him the financial incentive of additional commission to which he was not, in fact, entitled; The evidence of the Claimants that a further motivation for giving Mr Barber an incorrect start date of 3 April 2020 related to an apparent concern on the part of the Respondent that Mr Barber might, as a gay man, play what was referred to in the Claimants’ evidence at the final hearing as ‘the gay card’ and potentially commence employment law proceedings if he was not given commission to which he was not actually entitled.[15]Although Ms Hutchison suggested in her statement of evidence that Mr Barber was paid commission for plots reserved at a time when he was not working for the Fielders Quarter, under questioning at the final hearing she was vague and evasive in answering questions concerning this matter. In the light of this and also the fact that she was not employed by the Respondent for all of the material time, I do not give weight to her testimony.[16]Considering and weighing the evidence on both sides, I find that the factors in favour of a finding that Mr Barber was working at the Fielders Quarter site from 3 April 2020 outweigh the factors in favour of a finding that he was only employed from the site from 24 July 2020. I find that it is more probable than not that he was employed there from April 2020 and entitled, in accordance with his contract, to commission on plots reserved from that date.[17]I stress here, however, that this is not an especially material finding of fact in the context of the legal claims to be decided. That is because, even if the finding of fact just made is wrong and Mr Barber’s start date was in July 2020 and he was not, in fact, entitled to commission for plots reserved from April 2020, the height of Claimants’ evidence is that any special arrangement for Mr Barber related either to his friendship with Ms Triphook-Cole or a concern by the Respondent that Mr Barber might somehow weaponise his sexual orientation (as the Claimants’ evidence was reasonably characterised in closing submissions on behalf of Respondent) if he was not paid commission to which he was not, in fact, entitled. In the judgement of the Tribunal, there is no reasonable way of interpreting the case made by the Claimants that any differential treatment of Ms Vosper compared to Mr Barber had anything to do with Ms Vosper’s sex. I will return to this in the ‘Conclusions’ section of the judgment.[18]The Claimants’ contracts of employment identify a basic salary per annum and also the following: Case Numbers: 3200969/2022 and 3200970/2022 5 ‘If you are entitled to receive a commission payment, guidance on the current basis and method of payment will be set out in the relevant commission document, which shall be provided to you by the company from time to time. Any such commission document shall not form part of your terms and conditions of employment. The company reserves the right to change the basis and/or method of calculating any commission payable at its absolute discretion and shall notify you of any such changes from time to time. Commission is only paid on exchange or completion if you are still in the company’s employment at the date of exchange or completion.’[19]According to the Claimants’ contracts of employment, their normal place of work was “Any development within the area of operation from time to time of the Division of the Company that you work for.” As already mentioned, the Claimants worked at the Fielders Quarter Division.[20]Employees of the Respondent do not receive payment for commission on plots that they have not reserved and which have been reserved during their period of training. The period of training is dependent upon the discretion of employee managers and typically lasts between 4 – 12 weeks.[21]The Respondent’s commission procedure was provided in the latest revision dated 29 January 2021, which applied to the Claimants at the time of their employment. Further updates to the commission entitlement were sent to the Claimants and a document headed “Commission for Sales Advisers” was the final one received by the Claimants.[22]According to the relevant contracts of employment, Sales Advisers are entitled to receive a percentage of the net value of the plot they sold after all incentives or discounts have been deducted. The net cost is that which is evaluated at the point the plot is reserved. Commission will be paid at a percentage of the net selling price of the plot - this means the true net value after deducting the cost of any incentives or discounts given at the point of reservation and also any further incentives or reductions which may be given after the date of reservation, i.e. net price on the Respondent’s sales monitor system.[23]The Claimants worked on a site that was open seven days per week and had been open from June 2020. There were three Sales Advisers on site for the majority of the time.[24]In accordance with the commission structure for a site open seven days per week, the percentage of commission was 0.35%, which was to be shared equally between all advisers. That equates to 0.116% commission per adviser if there were three working on site.[25]According to the relevant arrangements, commission is paid in two halves. The first half is paid on exchange of contracts, and the second half when the conveyancing transaction is completed. In order for an employee to be entitled to be paid commission, they must be employed at the time that each part of the Case Numbers: 3200969/2022 and 3200970/2022 6 commission is due to be paid, according to the relevant term of the contract, as already cited above.[26]The commission process is managed through the Respondent’s Sales Monitor IT system.[27]At the final hearing the Claimants did not seriously contest the Respondent’s position on the framework governing commission payments, particularly that aspect of the framework that provided that payments (including payments for customer extras and mortgage commission) falling due after the termination of an employee’s employment were not payable. Rather, the thrust of their position was that their respective employments should not have been terminated when they were. For reasons that the Tribunal has already alluded to, the fairness or otherwise of the ending of the Claimant’s respective employments with the Respondent was not a matter for consideration and decision at the final hearing.[28]The Claimants did question to some extent the Respondent’s position that if, for example, three sales advisers were to split commission and one of those advisers was not, in due course, eligible to their share of the commission due to the termination of their employment, their share would revert to Respondent rather than the other two sales advisers. However, I am satisfied by the evidence of Ms Philipson that letters sent to employees concerning the payment of commission made it very clear an employee’s individual entitlement to commission was as set out in such a letter and there was nothing to indicate that it might increase should another sales adviser eligible for commission become ineligible due to the termination of their employment.[29]Ms Vosper gave evidence of having to complete fresh paperwork in relation to some reservations, or as she put it ‘re-do’ them, and of asking if she could receive commission in relation to those transactions. However, I accept the submission on the part of the Respondent that Ms Vosper was essentially looking for commission in relation to reservations that fell outside the bounds of her contract and that the refusal of the request by the Respondent was entirely permissible.[30]In a Schedule of Loss, Ms Vosper set out her commission payments, alleged to be owed, starting from Plot 65.[31]After the instant proceedings were initiated, the Respondent conceded that Ms Vosper did not receive commission payments on some of the plots referred to in her Schedule of Loss, and, on recalculation, some plots were identified as entailing an underpayment. The Respondent conceded that the appellant was owed £1,135.23 (gross). It is accepted by Ms Vosper that a cheque for £901.25 (the aforementioned gross amount net of relevant deductions) was paid to her by the Respondent on 29 July 2024.[32]On the evidence presented, the Tribunal accepts the following arguments advanced on behalf of the Respondent: Case Numbers: 3200969/2022 and 3200970/2022 7 Ms Vosper’s start date of 5 October 2020 identifies that she was not working for the Respondent at the time of reservation of some plots in relation to which she claims commission should have been paid; Ms Vosper was not entitled to a number of claimed payments on the basis that both exchange and completion were after her effective date of termination (17 December 2021); and A reliance upon a percentage rate at 0.125% is incorrect. The commission pension rate should be calculated at 0.116%.[33]In a Schedule of Loss, Ms Sykes set out the plots in relation to which she was making a claim for unpaid wages.[34]After the instant proceedings were initiated and after a review of the relevant plots, Respondent conceded that Ms Sykes did not receive commission for plot 173 and consequently was owed the total sum of £257.18 (gross). Ms Sykes accepted that she had received a cheque for that amount ie £257.18 on 29 July 2024.[35]In detailed tables at 220 – 227 of the hearing bundle, the Respondent set out its reasons for rejecting Ms Sykes claims for commission in relation to individual plots referred to in her Schedule of Loss, save for the aforementioned plot 173. Having considered the reasons given for the refusals of claims concerning plots other than plot 173, the Tribunal accepts that the reasons for refusal are consistent with Ms Sykes’ contract of employment and the related commission procedure documents.The Law
[36]I turn now to the relevant law.[37]Ms Vosper’s Direct sex discrimination claim is governed by section 13 Equality Act 2010.[38]Under section 13 of the Equality Act 2010 in a direct discrimination claim, I must ask myself whether there was less favourable treatment because of the protected characteristic (here, sex). The less favourable treatment must also, in the employment context, have subjected the Claimant to a ‘detriment’, (see section 39 of the Equality Act 2010).[39]I remind myself that it is rare for such discrimination to be admitted and I may have to consider what inferences I draw from the primary facts. I have been asked to consider an actual comparator in this case, who is a former male colleague of the Claimants by the name of Mr Jack Barber. I also remind myself that the protected characteristic does not have to be the sole reason for the treatment: there is discrimination if it was a material influence. It can be useful in some cases to look at the reason for the treatment first. Case Numbers: 3200969/2022 and 3200970/2022 8[40]The Claimants’ unpaid wages claims are governed by section 13 of the ERA 1996. In simple terms, it provides for an award of any unpaid wages, including commission payments.Conclusions
[41]Ms Vosper claims direct sex discrimination pursuant to section 13 of the Equality Act 2010 in respect to the terms of commission entitlement afforded to her. She compares herself to Mr Jack Barber.[42]The question arising from the list of issues is whether Ms Vosper was treated less favourably than Mr Barber in respect of the terms of commission entitlement afforded to her.[43]On the basis of the findings of fact set out above, Mr Barber was paid commission in line with a start date of 3 April 2020 and in accordance with his contract of employment in the same way that Ms Vosper was paid commission in line with a start date of 5 October 2020 and in accordance with her contract of employment. In other words, Ms Vosper was not treated less favourably than Mr Barber.[44]Alternatively, even if Mr Barber was treated more favourably than Ms Vosper by being paid commission as though he had started his employment earlier than he actually did, on Ms Vosper’s own account, this had to do with factors that had no rational connection whatsoever with Ms Vosper’s sex. As such, Ms Vosper’s claim for direct sex discrimination must fail and is dismissed.[45]I turn now to the unpaid wages claims. The list of issues records that both Claimants claim unpaid wages in the sum of approximately £80,000 in respect of unpaid commission and bonus payments arising from approximately 183 houses on the site they worked. The list of issues records that payments are calculated using the following parameters: 0.025% of the property price 5% of extras; and £50 for each recommended broker[46]Applying the findings of fact set out above, I am satisfied that the Claimants’ claims for unpaid wages are well-founded to the extent already conceded by the Respondent but not to any extent greater than that.[47]As such, although the judgment records that the Claimant’s claims for unpaid wages are well-founded, it also records that any monies due have been paid by the Respondent and that the Claimants are not therefore entitled to any award in respect of those claims.[48]The claim for direct sex discrimination brought by Ms D Vosper is not upheld and is dismissed. Case Numbers: 3200969/2022 and 3200970/2022 9[49]The claims for unpaid wages brought by the Claimants are well-founded and are upheld. However, upon the Respondent having paid the sum of £901.25 (net of relevant deductions taken from a gross sum of £1,135.23) to Ms D Vosper on 29 July 2024 and the sum of £257.18 (gross) to Ms S Sykes on 29 July 2024, the relevant wages have been paid and no further awards arise.