Mr H K Cheema v Bleep 360 Care Ltd: 6018095/2024
JUDGMENT
[1]The claimant’s claim of breach of contract (failing to pay commission earned in May 2024 on 28 June 2024) is dismissed.[2]The claimant’s claim was one of breach of contract, not of unauthorised deduction from wages. The file had been marked in the alternative by the Tribunal, so the claim of unauthorised deduction from wages is also dismissed.REASONS
[1]The claimant was employed by the respondent as a Senior Care Co-ordinator from 20 June 2022 until 28 June 2024. The claimant was employed under a statement of terms of conditions of employment and associated handbook. The contract and an extract from the handbook were provided for this hearing. 1 of 6[2]The claimant’s claim is for contractual commission for work done in May 2024 that he was due to be paid for in his pay for June 2024, which was paid on 28 June 2024. The claim is one of breach of contract under Article 3 of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 (“the 1994 Order”).[3]The claimant handed in his resignation on 4 June 2024, and it was agreed between the parties that his employment would end on 28 June 2024. It was agreed at this hearing that the claimant was placed on Garden Leave from 25 to 28 June 2024. It was agreed by the claimant at this hearing that the respondent had the contractual right to place him on Garden Leave.[4]The respondent did not pay the claimant commission earned in May 2024 in his pay on 28 June 2024. It relied on a clause in his contract that stated: “Any commission will only be paid on the condition that you are in our employment and not serving notice at the time that the commission is due to be paid.”[5]After correspondence between the parties, the claimant started early conciliation with ACAS on 5 September 2024 and obtained an early conciliation certificate dated 11 October 2024. He presented his claim form (ET1) to the Tribunal on 9 November 2024.[6]In preparation for this hearing, the parties exchanged witness statements and produced a bundle of documents that consisted of an index and 68 pages. I read all the documents and the Tribunal’s electronic file before the hearing. If I refer to any documents in the reasons, I will include the relevant page numbers from the bundle in square brackets.The hearing
[7]The hearing started at 10:00am. I introduced myself to the parties and set out the timetable for the hearing.[8]The claimant was represented by Mr Haque, a McKenzie friend. I reminded them that the Tribunal operates on a set of rules (I have set out a link to the rules in the separate case management order). Rule 2 sets out the overriding objective of the Rules (their main purpose) which is to deal with cases justly and fairly. It is reproduced here: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far that is practicable –(a) Ensuring that the parties are on an equal footing;(b) Dealing with cases in ways that are proportionate to the complex that are importance to the issues;(c) Avoiding unnecessary formality and seeking flexibility in the proceedings; 2 of 6(d) Avoiding delay so far as compatible with proper consideration and the issues, and(e) Saving expense. The Tribunal shall seek to give effect to the overriding objective in interpreting or exercising any power given to it by these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall cooperate generally with each other and with the Tribunal.”[9]We agreed that the claim was one of breach of contract, not unauthorised deduction from wages, and agreed the issues in the case (see below). I heard evidence form the claimant and from Sasha Cooper, Group Head of People & Operations at the respondent.[10]I heard closing submissions from Ms Scarbrough-Lang and Mr Haque and retired to consider my decision. I delivered an oral Judgment and reasons. The claimant asked for the reasons to be put in writing. The hearing ended at 11:56am.The law
[11]The relevant statutory law for the breach of contract claim is Article 3 of the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994: Extension of jurisdiction 3. Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if—(a) the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;(b) the claim is not one to which article 5 applies; and(c) the claim arises or is outstanding on the termination of the employee’s employment.The issues
[12]It was agreed that the issues (questions that I had to find the answers to) were as follows: Breach of Contract 1. Did this claim arise or was it outstanding when the claimant’s employment ended? 2. Did the respondent do the following: 3 of 6 2.1. Fail to pay the claimant commission earned in May 2024 in his pay on 28 June 2024? 3. Was that a breach of contract? 4. How much should the claimant be awarded as damages?Findings of fact
[13]In deciding questions of facts relating to the issues in the case, I considered the written evidence in witness statements, the witnesses’ answers to questions (oral evidence) and the relevant documents. Decisions on the facts are made on the balance of probabilities; which account is the more likely. I have not made findings of fact about all the matters in the witness statements and documents. I have only made fundings about the facts that assisted me to make my decision.[14]Most of the facts in this case were either agreed by both parties, or not disputed by one of the parties. The case was really about the interpretation of the words in the claimant’s contract. The agreed or undisputed facts were as follows: 14.1. The claimant was employed by the respondent as a Senior Care Coordinator from 20 June 2023 until 28 June 2024. The claimant was employed under a statement of terms of conditions of employment (a contract) [34-36] and associated handbook, part of which dealt with the terms of the respondent’s Garden Leave policy [37]. 14.2. The claimant’s claim is for contractual commission for work done in May 2025 that he was due to be paid in his pay for June 2024, which was paid on 28 June 2024. 14.3. The claimant gave unchallenged evidence that when he was offered the job, he was told that commission payments would be paid immediately. I find this to be unlikely because of the possibility of a client failing to pay within the respondent’s standard credit terms. Ms Cooper gave unchallenged evidence that this period was between 30 and 90 days. 14.4. It was the claimant’s unchallenged evidence that he queried the failure to pay commission at the end of his first month of employment but was told that the respondent paid commission at the end of the month following the month that the commission was earned (i.e., if the claimant earned commission in December 2023, it would be paid with his salary in January 2024.) 14.5. The claimant agreed that he did not raise a formal grievance about the timing of commission payments. He said that he felt unable to complain because his employment had started, and he had lost the bargaining strength he had had before he accepted the position. I empathise with that sentiment, but I find that the claimant accepted a term in his contract 4 of 6 by acquiescing to the term that he was paid commission at the end of the month following the month in which he earned the commission. 14.6. The claimant handed in his resignation on 4 June 2024, and it was agreed between the parties that his employment would end on 28 June 2024. It was agreed at this hearing that the claimant was placed on Garden Leave from 25 to 28 June 2024. It was agreed by the claimant at this hearing that the respondent had the contractual right to place the claimant on Garden Leave. 14.7. It was agreed that the claimant had earned commission in May 2024 that, under normal circumstances, would have been paid with salary at the end of June 2024. 14.8. The parties agreed that the respondent did not pay the claimant commission earned in May 2024 in his pay on 28 June 2024. It relied on a clause in his contract that stated: “Any commission will only be paid on the condition that you are in our employment and not serving notice at the time that the commission is due to be paid.” 14.9. After correspondence between the parties, the claimant started early conciliation with ACAS on 5 September 2024 and obtained an early conciliation certificate dated 11 October 2024. He presented his claim form (ET1) to the Tribunal on 9 November 2024. I find that this claim arose and was it outstanding when the claimant’s employment ended on 28 June 2024. Disputed facts[15]I make the following findings on the disputed facts: 15.1. The second paragraph of the respondent’s Garden Leave policy states: “During any period of garden leave you will continue to receive your full pay and any other contractual benefits. Please refer to your Statement of Main Terms for details of these.” 15.2. The claimant relies on the words “…you will continue to receive your full pay and any other contractual benefits...” during Garden Leave to support his assertion that he should have been paid his May commission in June 2024. I respectfully disagree with the claimant’s assertion for the following reasons: 15.2.1. The relevant clause concerning commission in the claimant’s contract (see paragraph 14.8 above) states that commission will not be paid if “you are in our employment and not serving notice at the time that the commission is due to be paid.” I find that the clause in the contract is clear and unambiguous. 5 of 6 15.2.2. I find that the Garden Leave clause only affects the payments to be made in periods of Garden Leave. The claimant was on Garden Leave at the time that payment would normally have been made (28 June 2024) but he was serving a period of notice on that date. The fact that he was on notice, supersedes the fact that he was on Garden Leave. 15.2.3. The Garden Leave clause refers the reader back to the main contract. The mani contract sets out that no commission will be paid if the employee is serving notice.[16]I find that whilst the refusal to pay the claimant his May commission on 28 June 2024 was unfair in the common usage of that word, it was not unlawful.[17]The claim therefore must fail and is dismissed. Approved by EJ:Background
[1]On 31 March 2025, I heard the final hearing in this case by remote video hearing. At the final hearing, I gave the following Judgment: 1.1. The claimant’s claim of breach of contract (failing to pay commission earned in May 2024 on 28 June 2024) is dismissed. 1 of 6 1.2. The claimant’s claim was one of breach of contract, not of unauthorised deduction from wages. The file had been marked in the alternative by the Tribunal, so the claim of unauthorised deduction from wages is also dismissed.[2]The claimant submitted an application for reconsideration on 17 April 2025, which complied with the procedure set out in Rule 69 of the Employment Tribunal Procedure Rules 2024.[3]The claimant’s application was: “To whom this may concern, I am writing this as a plead for reconsideration of the judgment made on the case. To save you time, I will not have any repetition of the 'Garden Leave' argument that was already presented during the hearing. However, I have provided in this letter why we kindly request a reconsideration. Our claim is still for which the commission earned during the full course of employment in May. I have included a statement from Mr Cheema and two new points of "Economic Duress" and "Customs & Practice". After the hearing concluded, I discussed it with Mr Cheema. We understood that some arguments/details had been omitted during the trial due to our inexperience in legal or court proceedings. Economic Duress was present when his employer told him he would receive his commission the following month. At the time, Mr Cheema had no practical option but to agree to unreasonable new terms without giving him an appropriate or adequate explanation. This new term was not added or a part of the main terms of the contract, either. We believe the company has shown a clear display of abuse of power over the employee very early into their probation, putting him in a position where he's been exploited. The pressure to agree was significant, as Mr Cheema was at his employer's mercy to pass probation. If he doesn't do what Joe says, 2 of 6 he's out of a job. This fear of job security, especially as a London resident, was the only breadwinner in his family. This is identified by inducing Mr Cheema to accept this new "implied" contractual term; for example, if it had not been for the Duress, Mr Cheema would not have gone forward with the new contract. We would like to mention that Mr Cheema's resignation acceptance letter did not mention or acknowledge that the commission was no longer payable. It would be reasonably expected to mention such information as the commission amounts to roughly £1,300-£1,500. Mr Cheema was only made aware that his commission wasn't paid after the final payslip, and he immediately challenged it, as seen on the dates of the email correspondence. If the judge is not satisfied with the Economic Duress present, we would also like to ask the judge to look into Customs and Practices. The Customs and Practices at Bleep 360 Care led Mr Cheema to believe that he would 2 be paid his May commission. The principle follows: The commission earned is paid in the following month's pay slip. If so, June's 2024 commission would not be given because he would have left the company in July, which is fair. However, May's commission would have been paid into June's payslip. Thus, the commission became integral to Mr Cheema's contractual pay through consistent, established practice. He hit the targets and accumulated it. He never told otherwise. Therefore, not paying it — especially without prior notice, explanation or agreement — was an unlawful deduction from wages. It is indisputable that it was a clear Custom and Practice to pay commission for work done regardless of the circumstances. Mr Cheema was never informed of any change to that. So, withholding the commission without notice or agreement was a breach of that established practice and, therefore, an unlawful deduction. 3 of 6 We want to highlight that, Mr Cheema has practically been deducted from not just one month's commission wages but two commission payments (May and June), which total around £2,600-£2,900. This is clear exploitation of the employee. We kindly request that the judge please reconsider his decision after evaluating this letter. Mr Cheema is looking for justice and if the court cannot help individuals facing injustice from occurring, who can?”[4]Rule 70 of the 2024 Procedure rules states: Process for reconsideration 70.(1) The Tribunal must consider any application made under Rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application. 4 of 6[5]I would refer the claimant to my Judgment and Reasons which, I would suggest, explain how I came to the decision that I did. In short, I found that: 5.1. The claimant’s claim was for commission earned in May 2024, which would ordinarily have been paid in the claimant’s pay for the following month. 5.2. The claimant handed in his resignation on 4 June 2024, and it was agreed between the parties that his employment would end on 28 June 2024. 5.3. The respondent did not pay the claimant commission earned in May 2024 in his pay on 28 June 2024. It relied on a clause in his contract that stated: “Any commission will only be paid on the condition that you are in our employment and not serving notice at the time that the commission is due to be paid.” 5.4. I found the contractual clause to be bunding on the claimant. The claimant did not run the economic duress or custom and practice argument at the hearing. He presented no evidence other than an assertion about the alleged custom and practice in the application for reconsideration. 5.5. The reconsideration application seeks payment of two months’ commission (for May and June 2024) when the claimant and his McKenzie Friend agreed at the final hearing that the claim was only for May’s commission. 5.6. I find that the application has no legal or factual merit and is a desperate attempt to redeem a lost case.[6]The application for reconsideration has no reasonable prospect of the Judgment being varied or revoked.[7]I apologise to the parties and their representatives for the delay in producing this Judgment. The delay was caused by my personal circumstances and the volume of ongoing work that I have had to deal with. 5 of 6 Approved by