Can I be moved to another department with less commission?

I have a contract for a certain department at work. I have now been taken off that department and replaced by a zero hours worker.That in itself is not a problem. The problem is that people in that department can earn more through commission and my commission has been badly affected due to the change. Can I insist on going back to the department that is stated in my contract of employment, even if it says I may be required to perform any task reasonably required of me by management?

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I am sorry to hear that you are having difficulties at work. If your contract of employment specifies that you are employed to work within that department, you may have an argument that your employer’s actions in moving you from that department to another amount to a breach of your contract of employment. Although employers have some flexibility to alter your job description or duties under a flexibility clause if this is contained in your contract of employment, they should act reasonably in doing so. I presume from the information that you have provided that you have always worked in that department previously and it is unusual for this type of move to occur?

In this case, as the change has materially altered your commission, you may be able to argue that this change has also resulted in you suffering financial loss – as you are not now entitled to the same amount of commission. If your right to commission is set out in your contract of employment, I recommend you check the relevant clause of your contract to see if the new role still falls within these terms, or the commission structure itself has also changed, which would add to your argument.

It’s unclear from your question whether you have been given a reason for the change or your employer has consulted with you before implementing this. As you are unhappy with the change and this has resulted in a loss of commission for you, I recommend that you raise your concerns with your employer. This is particularly important in this case, to make it clear that you are disputing the change as otherwise,  by continuing to work in the other department, over time you could be seen as having accepting the change by your actions.

I would therefore recommend that you raise a grievance, explaining that you are unhappy with the change to your department, that you believe that this move amounts to a breach of your contract of employment as your department is specifically stated and that this has been done without consultation with you. You should also explain that this change has materially altered your ability to earn commission and you consider this is also a breach of your contract of employment. You can also raise your concerns that it is unclear why this move has been implemented given that you have been replaced with a zero hours worker and you are concerned as to the rationale for this. You should make it clear that you do not agree to the change and are only continuing to work under protest, whilst you give them the opportunity to resolve the situation.

I would also recommend that you explain within the grievance that you would like to be returned to your original department. You should be able to find details of the company’s grievance procedure within their staff or employee handbook. You should receive a formal written outcome to the grievance and be given the right to appeal, which I recommend you pursue if the original outcome does not go in your favour.

Ultimately, if you have been employed for more than two years’ with the company, and can establish that your contract confirms your role should be within that department, you may be able to argue that their actions are so bad that they have amounted to a breach of your contract of employment which entitles you to resign and bring a claim for constructive unfair dismissal. This is a complex legal claim and is usually a last resort. You would usually be expected to raise a grievance first to provide an opportunity to resolve the situation before considering this route.

If they do not react positively to the grievance you could then consider whether you want to remain in employment or whether you want to resign and consider bringing a claim. We’d always recommend seeking specific legal advice before resigning to claim constructive unfair dismissal as it is a complex legal claim. You should also seek advice as to whether you may be able to remain in employment, but bring a separate claim for unlawful deduction of wages relating to your lost commission.

*Charlotte Farrell and Tabytha Cunningham are Partners at Paris Smith in Southampton.



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