Ebury Partners UK Limited v M Acton Davis
[2023] EAT 40
Daniel Johnston v Veritas Technologies (UK) Limited
20 February 2023
[2023] EAT 15
Employment Appeal Tribunal
An employee claimed his employer didn't pay him all the commission he was owed. The court looked at their contract and found that the extra money he wanted wasn't actually due because he hadn't gotten the required approval for such a large payment. So, the employer won.
Key Facts
- •Daniel Johnston (appellant) worked for Veritas Technologies (UK) Limited (respondent) as an Enterprise Customer Success Manager.
- •His contract entitled him to commission, potentially exceeding his £125,758 annual salary.
- •A dispute arose over commission for the period ending February 28, 2020, with Johnston claiming £505,564.78 was due (of which £232,015.95 had been paid), while Veritas claimed £232,015.95 was the correct amount.
- •Johnston claimed unlawful wage deduction under sections 13 and 23 of the Employment Rights Act 1996.
- •The Employment Tribunal found for Veritas, concluding Johnston received all that was properly due.
- •Johnston appealed, and Veritas cross-appealed.
Legal Principles
In a claim under section 13 of the Employment Rights Act 1996, the first question is whether any sum is legally due. Only if so, is deduction considered.
Hellewell v. Axa Services [2011] ICR D29; UKEAT/0084/11/CEA
The words “properly payable” in sub-section 13(3) denote a legal – though not necessarily contractual – entitlement on the part of the worker to the payment in question.
New Century Cleaning Co Ltd v. Church [2000] IRLR 27
Outcomes
Appeal refused; cross-appeal dismissed.
The contract's terms, and the Tribunal's findings, showed the claimed sum was never payable. The approval condition in the commission plan, requiring approval for earnings exceeding 250% of the On-Target Commission, was not met. Therefore, no sum exceeding 250% of the On-Target Commission was ever legally due.