A former commercial director with London firm Mishcon de Reya was unfairly dismissed after he was not paid commission owed to him for three years, a tribunal has ruled.
Paul Hemmings resigned in 2023 saying he had lost trust and confidence in the firm due to the way he had been treated and describing his performance review process as a ‘farce’ with an ‘unacceptable’ lack of transparency. Hemmings’ resignation letter further claimed he had been shown a ‘complete lack of respect, honesty and professionalism’ and made clear that he regarded himself as constructively dismissed.
Following a two-day hearing last month, Employment Judge Walker found the firm’s failure to calculate and pay Paul Hemmings commission every three months was a breach of contract.
She further found that the firm was not trying to give Hemmings the information he requested to help calculate was he was owed. The judge said the firm’s explanation on this was ‘disingenuous’ and it had been ‘evasive’ about Hemmings’ commission. She ruled that Hemmings was constructively dismissed and it was an unfair dismissal. A remedy decision will be made at a future date.
The London Central tribunal heard that Hemmings joined Mishcon de Reya in 2020 to work in its cyber business. In addition to his annual salary, his contract set out that he would be paid 3% quarterly on all fees originated by him.
But trading conditions were challenging and there were difficulties with the marketing of the cyber business.
A formal meeting was held in July 2023 attended by Hemmings, his manager Joe Hancock and an HR representative to address concerns about performance and discuss sales targets. The firm kept notes and produced a record of the meeting that the judge described as ‘far from complete’. Hemmings secretly made a recording of the meeting and later produced a full transcript.
The recording showed that Hancock accepted that the cybersecurity market was weak and there was nothing Hemmings could do to improve performance.
At the meeting, Hemmings also raised that he had not received any commission payments and asked for an explanation of the term ‘origination’ as set out in his contract. The firm subsequently paid almost £4,000 in the August payroll but there was nothing sent to him to explain the calculation.
In his resignation letter, Hemmings claimed the firm had been reluctant to provide adequate information. After the performance meeting, he had been left waiting for nearly six weeks for a copy of the notes and there were ‘fundamentally flawed’, not reflecting what had been said.
Mishcon de Reya denied to the tribunal that it withheld information and stated that it had provided a breakdown of the commission calculations after it had been requested. There was no evidence of any outstanding commission, it was submitted, and the firm argued that the contract had been affirmed by Hemmings.
Separate to the remedy for unfair dismissal, the firm was found liable to Hemmings for the unlawful deduction of a course fee of almost £2,000.
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