Contract: Terms did not provide for apportionment
A newly qualified solicitor has won an employment tribunal claim against a City law firm that sought to get out of paying him commission for exceeding his billing target.
It was only after Billy Rashbrook claimed commission of £13,000 that Raymond Saul & Co sought to apportion the fees he generated to partners and trainees, said Employment Judge Sullivan in London.
Mr Rashbrook qualified at the firm in September 2021 and was put on a salary of £38,000. His contract provided that, if he billed more than three times his salary (ie, £114,000) in the year to 31 August, he would receive commission of 20% of the excess.
In September 2022, Mr Rashbrook calculated that he had billed nearly £180,000 and was owed £13,045 in commission.
Managing partner Feyi Fakoya then told him that one large project he had worked on would be subject to apportionment due to the work that a partner had done on it.
Though Mr Rashbrook disputed this, on the basis that his contract made no mention of apportionment, he eventually agreed that 40% of the invoices for the project should be apportioned to the partner, reducing his overall commission to £7,866.
The solicitor left the firm on 1 November 2022, at which point the commission had not been paid or agreed.
The firm then told Mr Rashbrook that he would receive no commission after it apportioned all of his bills – with 65% attributed to him – and reduced his share of the big project from 60% to 51%.
Judge Sullivan noted that Raymond Saul & Co accepted that there was very limited time recording from anyone else on the files.
He held that Mr Rashbrook’s employment contract did not provide for apportionment at all and that the firm “was not engaged in any meaningful exercise of apportionment during the course of the commission year”.
If it had been, he would have expected the firm to provide monthly statements of account to the solicitor – as required by his contract – when in fact it breached this requirement entirely.
“There was no evidence before me of the respondent keeping the necessary records to properly engage in an exercise of apportionment on the claimant’s files,” the judge said.
The firm’s position was that it had the discretion to identify “blanket percentages of apportionment” at the conclusion of the commission year.
Judge Sullivan said: “If that was correct, I would expect wording to that effect to be contained within the contract.”
The idea of blanket apportionment was only deployed to reduce Mr Rashbrook’s commission to zero, he went on, “rather than any meaningful exercise of calculating the actual work different people had carried out on the same file”.
The firm countered with a claim that the solicitor had breached his contract by retaining information about his files after his employment ended.
The judge rejected this, initially on the basis that Mr Rashbrook had to do so in order to pursue his claim and had not shared it with anyone other than the firm and the tribunal.
“However, in preparing these written reasons, I realise that I should have rejected the claim on the basis that I have no jurisdiction to deal with it when the claimant has not brought a claim for breach of contract.”
Ordering Raymond Saul & Co to pay the £7,866 owed, he issued a revised judgment on reconsideration alongside the written reasons to reflect this.
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