Raymond Saul & Co LLP v Billy Rashbrook

A contractual commission provision must be construed according to its natural and ordinary meaning, in its commercial context. Where commission is payable on profit costs invoiced by an employee in respect of work carried out by that employee, fees for work performed by colleagues must be excluded when calculating both the qualifying threshold and commission.

An Employment Tribunal errs if it treats the absence of an express apportionment mechanism as overriding those words. An appellate tribunal may substitute dismissal rather than remit only where, after correcting the error of law, one result necessarily follows from the findings and undisputed facts.

The claimant, a newly qualified solicitor employed by the appellant firm, brought a claim for unlawful deductions from wages. He alleged that he was owed contractual commission on fees invoiced on files that he had run during his first commission year.

The London Central Employment Tribunal held that the claim succeeded and awarded £7,866.16. It construed the contract as entitling the claimant to 20% of all amounts invoiced by him above the relevant threshold. It rejected the firm's later apportionment of fees for partners', fee earners' and trainees' work.

The firm appealed. The issues were the proper construction of the commission clauses, whether the Tribunal's finding about the absence of apportionment records was perverse, and whether the matter required remission.

1. Appeal allowed; claim dismissed. The Employment Tribunal misinterpreted the commission provisions. Applying the ordinary and commercial meaning of the language, clause 8.1(a) imposed three conditions: profit costs had to be invoiced by the claimant, paid by the client, and be in respect of work carried out by the claimant as a solicitor.

2. The final condition excluded profit costs attributable to colleagues. It permitted a workable apportionment where several fee earners contributed to a file. Clause 8.3 confirmed that only profit costs in respect of the claimant's own work could count towards the threshold. The Tribunal had impermissibly treated the absence of an express apportionment provision, and the alleged failure to provide monthly statements, as reasons to disregard the contractual wording.

3. The Tribunal's finding that there was no evidence of records capable of supporting apportionment was perverse. The firm had adduced evidence of its time-recording system, its review of digital matter records and a schedule identifying other fee earners who worked on the relevant files. That evidence was capable of supporting an apportionment exercise.

4. Applying Jafri, remission was unnecessary. The claimant was a first-year newly qualified solicitor. The Tribunal's findings and the undisputed evidence established that partners, other fee earners and trainees supervised, supported and contributed to his files. On any realistic broad-based apportionment, he could not have generated sufficient profit costs attributable to his own work to exceed the threshold. There was therefore only one permissible result: the unlawful-deduction claim was dismissed.

• Employment Appeal Tribunal: appeal allowed and the claim dismissed: [2025] EAT 129.
• Employment Tribunal (London Central): judgment sent to the parties on 20 March 2023. The Tribunal upheld the unlawful-deduction claim and awarded £7,866.16 in commission. Its decision was reversed.