Garden Leave Pay

[TheMechanicsWife]

Hello,

 

My Husband handed his notice into his employer last week... The company immediately told him to leave the premises and that he was officially on 'Garden Leave' - The work he does whilst not specialist, is very much commission based and as he cannot attend his workplace, he cannot earn what he would normally for the time (3 months) that he has to sit out his notice (if this is to be the case). Is there anything to protect against this or is it a case of suck it up and see out the time on his basic pay.... Any help appreciated.. Tilly x

[ericsbrother]

depends on what his contract says about commission and how it is paid.

How long has he been there and what commission does he earn and how is t calculated? Employment Tribunals have made decisions against companies doing this so he may well have a clai for lost earnings.

nothing to stop him ding a bit of other casual work in the meanwhile as well

[TheMechanicsWife]

It gets a bit complex here.... He doesn't have an up to date contract, his last contract we have is one he got a couple of years back for a completely different position that didn't work out... He was shunted into another position lower basic salary plus commission but has never signed a contract for that position. We can prove via payslips that commission has been paid in his role since he took up that position and have a copy of the commission bandings payable... Tilly x

[ericsbrother]

no need to sign a contract, he accepted the terms and pay for a period of more than 6 months so it will be legit.

however, that doesnt answer the questions as to how commission is calculated and paid.

he should do some agency work or whatever to make some money, perfectly allowable as no company owns you

[TheMechanicsWife]

Thanks ericsbrother. He is paid a percentage on profit from sales one month in arrears. He has covenants in the contract preventing him working for any competitor for 3 months.... They're saying that he won't be paid his commission now as he's put his notice in...

[honeybee13]

Hi.

 

It sounds as if you OH is going to work for a competitor, is that right? If they're putting him on three months' gardeneng leave, are they going to pay him his basic salary?

 

Covenants like the ones in his contract aren't always enforceable, maybe one of the experts will comment.

 

HB

[ericsbrother]

They will need to prove the covenant applies to stop the bonus because as you explain it there isnt a clause that says he doesnt get it otherwise.why did he give 3 months notice? A month is usual unless the contract is agreed differently such as aschoolteachers not being able to leave until the end of temr

[TheMechanicsWife]

Update - He got a letter through stating they'd accepted his resignation and the termination date was retrospective to the date of his notice letter and they would pay him lieu of notice. As the contract says 3 months notice, should he get 3 months... In error, he only put 1 months notice in his resignation letter, so I think he would be only entitled to 1 months pay or am I wrong... It appears they are trying to say they do not need to pay his commission owed if he hasn't been at work... There is nothing in the contract that stipulates commission but we have all the evidence to show it exists and has been paid up to him putting his notice in and he is owed it.... Many thanks Tilly xx

[ericsbrother]

well if they are giving him 3 months pay I would forget about the commission.

If they pay him 1 month then he will need to consider what has been the norm fo commission as they cant not pay what is due from the past unless they have a specific clause about only paying it if you are still there in the relevant year for example. No clause  like that and what has been custom will be the rule they have to apply whether they like it or not

[TheMechanicsWife]

As suspected, one month's pay only... Seen a Employment Law Solicitor today who says with the evidence my husband has  presented, he will have a definite claim - there is no clause in the contract that says you will not be paid it in the event of leaving - Another ex-employee has confirmed they received their commission when they left and will give us all the details... Thanks ericsbrother for all your help. Tilly xx

[ericsbrother]

there is case law on this so an employemnt lawyer will know the ins and outs of it.