Brill v. Interactive Business Communications Ltd (Damages for breach of contract)

On an appeal concerning commission payable after termination, the appellate tribunal must apply the contractual construction determined below unless that determination is properly challengeable within the grounds permitted for the appeal. A contractual term providing that outstanding commission terminates on dismissal may prevent recovery of commission generated before termination but payable later. The Employment Tribunal is entitled to resolve whether any sum was earned before dismissal by assessing the evidence. An appellate tribunal must not re-examine evidence or substitute its own factual view. A finding is not perverse merely because another tribunal might have reached a different conclusion.

The claimant appealed from an Employment Tribunal sitting at Watford, which dismissed claims including unfair dismissal, breach of contract and unauthorised deductions relating to unpaid commission. The Employment Tribunal found that the claimant was bound by a written contract containing a clause stating that outstanding commission payments terminated when employment ended.

Following an order made by Slade J on 6 May 2010, the appeal proceeded only on the commission ground. The central issues were whether the respondent’s references to £7,052.98 amounted to an unconditional concession, and whether the claimant was entitled to commission generated before termination but payable afterwards.

1. Appeal dismissed. The Employment Tribunal had correctly identified the commission issues at the outset, namely what commission the claimant was entitled to for work and orders completed before termination and what he had received.
2. The Tribunal’s finding that the contractual documents formed one binding contract, including clause 15, was not open to challenge on this appeal. That clause provided that outstanding commission terminated if the claimant left or was dismissed. It therefore governed commission generated before termination but not falling due until afterwards.
3. The respondent’s references to £7,052.98 did not remove the live issue. The Tribunal was entitled to determine whether any part of that sum was payable before dismissal and found, on the evidence, that the claimant had not established that any part was then due.
4. The EAT could not revisit the evidence or speculate about submissions or evidence not before it. The Tribunal’s factual findings were binding absent an established error of law.
5. The conclusion was not perverse. The high hurdle identified in Yeboah v Crofton [2002] IRLR 634 was not approached. Whether another tribunal might have reached the same findings was immaterial.

• Employment Appeal Tribunal: Appeal dismissed on the commission ground.
• Employment Tribunal, Watford: Dismissed the claimant’s claims, including the claim for commission after termination.
• Slade J, 6 May 2010: Directed that the appeal be listed for a full hearing solely on the claimant’s commission ground.