Commission claim struck out after claimant failed to provide evidence
A former sales employee's claim for unpaid commission was struck out after she failed to comply with tribunal orders and admitted she had no legal argument to overcome a contractual discretion clause. The tribunal also ordered her to pay £10,000 in costs.
1 min read · Last updated 18 May 2026
Case details
- #strike-out
- #failure-to-comply-with-orders
- #no-reasonable-prospect-of-success
- #unfair-dismissal-struck-out
- #commission-dispute
- #costs-awarded
Key facts
- The claimant brought claims for unfair dismissal and unpaid commission.
- The unfair dismissal claim was struck out on 9 June 2022 for failure to comply with an order to clarify the claim.
- The remaining claim was for commission under a contract that gave the respondent discretion to withhold commission.
- The claimant failed to provide a witness statement or disclose relevant documents despite tribunal orders.
- The claimant admitted she had no legal argument to overcome the contractual discretion clause.
- The claim was struck out at the final hearing because a fair trial was impossible and the claim had no reasonable prospect of success.
Timeline
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Claim form issued
The claimant issued a claim for unfair dismissal and other payments.
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Order to clarify claim
Regional Employment Judge Wade ordered the claimant to clarify her claim and gave a strike-out warning for the unfair dismissal claim.
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Unfair dismissal claim struck out
Employment Judge Elliot struck out the unfair dismissal claim for non-compliance with the order to clarify.
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Directions for final hearing
The tribunal ordered the claimant to provide a witness statement and set out her money claim by 3 February 2023.
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Claimant clarifies claim
The claimant stated her claim was for unpaid commission on a warm lead for Heriot Watt University.
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Respondent chases witness statement
The respondent emailed the claimant about the lack of a witness statement.
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Claimant responds about illness
The claimant said she had been unwell with flu and had no witness statement but had a voice recording.
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Final hearing and strike out
At the full merits hearing, the respondent applied to strike out the claim. The tribunal struck out the claim due to non-compliance and no reasonable prospect of success.
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Judgment sent
The written reasons for the strike out were sent to the parties.
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Costs judgment
The claimant was ordered to pay £10,000 in costs for bringing a claim with no reasonable prospects and unreasonable conduct.
The legal issue
The tribunal had to decide whether to strike out the claimant's commission claim due to her failure to comply with orders and because it had no reasonable prospect of success, given a contractual clause giving the employer discretion over commission payments.
The outcome
The tribunal struck out the entire claim for unpaid commission.
The key reasons were:
- The claimant failed to provide a witness statement or disclose relevant documents despite multiple tribunal orders.
- She admitted she had no legal argument to overcome the contractual clause that gave the employer discretion to withhold commission.
- The tribunal found a fair trial was impossible due to the claimant's non-compliance.
The claimant was also ordered to pay costs of £10,000 for bringing a claim with no reasonable prospects and unreasonable conduct.
Lessons & takeaways
- If you bring a claim, comply with all tribunal orders – failure to provide witness statements or documents can lead to your claim being struck out.
- A contractual clause giving your employer discretion over commission or bonuses can be a significant barrier – you need a strong legal argument to challenge it.
- Bringing a claim without reasonable prospects can result in a costs order against you, which can be substantial.
- If you are unwell before a hearing, you should still ask for an adjournment rather than simply not providing evidence.
- Clarify your claim early – the tribunal may strike out parts of your claim if you fail to respond to orders to clarify.
A claim that fell apart before it began
This case shows how a tribunal claim can collapse if the claimant fails to follow procedural rules. The former employee, who worked in a commission-based sales role, brought claims for unfair dismissal and unpaid commission. The unfair dismissal claim was struck out early for failing to clarify the claim. The remaining commission claim then faced a fatal problem: the claimant admitted that her contract gave Sera Neon Ltd discretion to withhold commission, and she had no legal argument to challenge that.
What the employer could have done differently
Sera Neon Ltd did not need to do much differently – the claimant's own conduct and the contractual terms worked in its favour. However, the employer was proactive in chasing the claimant for a witness statement and applying to strike out the claim at the final hearing. This strategy avoided a full trial and led to a costs award of £10,000.
Why this matters for similar claims
This case is a cautionary tale for employees bringing commission disputes. A contractual discretion clause is a powerful tool for employers, and tribunals will not override it simply because the outcome feels unfair. More importantly, the case highlights that tribunals expect claimants to comply with orders and provide evidence. Failing to do so can result in the claim being struck out, and potentially a costs order that far exceeds the value of the claim itself.
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