Holiday Pay - Commissions

[mrpoorman]

It has been brought to my attention that my previous employer may have underpaid me for holidays.

My salary was £20,000 and my OTE was £52,000. During holidays they paid me my normal salary plus £50 per day in commission. My actual commission earnings averaged out to £106 per day. Should they have paid me the £106 rather than £50?

[ULA]

I presume this query relates to holiday which had accrued and not been taken and therefore paid in your final salary.

If you had normal working hours and your pay included commission, then this may be considered to be remuneration which varies with the amount of work done and should be included in the calculation for holiday pay. The calculation will be based on the average weekly remuneration over the previous 12 weeks you were employed, so it will depend on what this was as to what you would have been entitled to. So, you will need to check this to determine whether you have been paid the correct holiday pay. Also, you would only be entitled to holiday pay being calculated on this basis if the accrued holiday formed part of 4 weeks basic holiday entitlement.

[mrpoorman]

No it relates to holiday pay recieved whilst I was still working there. I used up all of my holidays before I left.

[ULA]

Same principle applies as I detailed in #2 although the 12 weeks will be for the period immediately preceding the holiday you took. Couple of points to alert you to:

1. I am not sure how long you were employed or over what period you may have been underpaid holiday pay but The Deduction from Wages (Limitation) Regulations 2014 means that a claim for backdated deductions from wages for holiday pay made on or after 1st July 2015 are subject to a two years cap. This means that the period that the claim can cover will be limited to a maximum of 2 years.

2. Also, just to let you know about time limits, if you cannot resolve this directly with your employer you only have 3 months, from the date you left, in which to make a claim via the Employment Tribunal.

[mrpoorman]

I was employed there for 13 months. My employment ended on 23rd March 2018.

If this is not resolved by 23rd June do I have the option of going to a small claims court to recover any losses or does it have to be done via the Employment Tribunal?

I guess my first port of call is to have the company confirm my holidays for the year so that I can work out my average commissions prior to each holiday period.

[ULA]

If you cannot remember you holiday dates then yes you will need to contact your previous employer. In that correspondence it may be worth saying that you believe your holiday pay was calculated incorrectly in terms of the commission element and that you are requiring the information regarding the dates you took holiday to verify the fact. It may lead them to review the calculations themselves.

In regard to the issue of Employment Tribunal (ET) or making a Court claim I would strongly suggest the former as you do not pay a fee to make and ET claim, however to make a small claim via the Courts there is a sliding scale fee depending on the amount of the claim:

https://www.gov.uk/make-court-claim-for-money/court-fees

For the ET claim, you have three months less one day from the 23 March 2018.

[mrpoorman]

Ok, so if they dont supply the dates can I just make an ET claim on or before 22nd June for what I believe the amount to be?

[ULA]

You would need to prepare as accurate as possible the amount of the claim to complete the ET1 form. You can use payslips to help establish the previous 12 weeks of commission before any holiday, if you can remember any dates, or if you do manage to get them from the company.

If you are thinking of making an ET claim it may also be worth a call with ACAS (0300123 1100) in advance and speak to an advisor.

[mrpoorman]

Well the company was very unhelpful. They passed me to the Head of HR who asked that I call him to discuss. I emailed him but he replied saying he was out of the office most of the week and that I should call him to discuss. It started off fairly amicably as he explained why he thought I wasn't owed anything however when I challenged him he became agitated and decided that as I had mentioned British Gas vs Lock in my email and had also pointed out that due to ET time limits that time was of the essence in them providing the information requested that I was taking a very aggressive approach and was trying to strong arm them into giving me money.

[mrpoorman]

ok so this is what I work out to be my averages based on 12 weeks prior to each holiday.

Month	Commission	Holiday Pay
Feb-17	0	0
Mar-17	900
Apr-17	2700
May-17	1400	100	£69.44 per day
Jun-17	815
Jul-17	2670
Aug-17	1795	50	£73.33 per day
Sep-17	895	350	£74.44 per day
Oct-17	3440
Nov-17	195
Dec-17	445	300	£56.67 per day
Jan-18	526	400	£16.19 per day
Feb-18	364
Mar-18	1100	100	£27.64 per day
Apr-18	875

I only started in February (14th) and commissions are payable a month in arrears so at end of February I only recieved salary until end of the month. I have worked off a 24 day working month (1 day off Mon-Fri, work Saturday, work 1 Sunday in 3). In October this changed to 1 day off Mon-Fri but then do alternate weekends.
For May I have included the commissions paid in March, April and May.
For August I used commissions paid in June, July and August. And so on, would this be correct?

Additionally, I have not included the holiday commission in my calculations so for example where September includes July, August and September, I have left out the holiday commission for August. Should this be included or not?

What happens with January and December where my average commission was lower than the £50 they paid me? The contract says £50 with no mention of any reconciliation.