Thom v Hobart Real Estate Partners Limited [2023] EAT 37

Appeal against decision that the employment tribunal did not have jurisdiction to hear a claim for unauthorised deductions from wages where the claim was for a performance fee

The claimant‘s contract of employment referred to performance fees for her work as a chartered surveyor. 6.2 of the contract stated

“You may receive a minimum 10% of the Company's performance fee (subject to the appropriate deductions) from future investments where you are the designated Asset Manager. The terms and percentage of each performance fee will be negotiated with you and agreed in advance of each project [emphasis added]

A new project arose and the respondents emailed the claimant saying she had been allocated a 10% profit share on it. The claimant replied to that email saying she felt that was low and asked for 25% but the matter was left unresolved. In March 2020 the respondents received a success fee, then in August 2020 the claimant was given 3 months notice of termination for redundancy without receiving payment relating to the completed project.

The employment judge decided that he did not have jurisdiction to hear the claim broadly because the email exchange had not resulted in an agreement and there was no agreed basis to calculate the sum payable. He also rejected arguments that at least the minimum 10% was payable as “it would not be a perverse or irrational exercise of any retained discretion for the respondent to fail to pay [the claimant] something she had expressly not accepted.” Judge Tayler, after reviewing the relevant case law, agrees with that outcome, reiterating that “there was no sum that the claimant could establish was properly payable”.

Published: 14/04/2023 10:49

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