Business consultant wins £5,130 for unpaid commission, holiday and notice pay but loses discrimination claim

A case about unpaid entitlements and a discrimination claim that did not succeed

This case shows how employment status can be crucial to claiming basic rights. The claimant worked as a business consultant for eight months, paid only on commission. Despite being treated as self-employed, the tribunal had already ruled she was an employee and a worker – entitling her to paid holiday and notice pay. When her employment ended without payment, she brought claims for unpaid commission, holiday pay and notice pay.

The discrimination claim was different. The claimant asked to work from home to care for her severely disabled son. The employer refused, saying regulations did not permit homeworking – a policy applied to all 26 similar employees. The tribunal accepted that the reason for refusal was not her son's disability but the employer's desire for close control. Direct associative discrimination requires the protected characteristic to be the reason for the treatment; here it was not, so the claim failed.

What the employer could have done differently

Eunisure Limited did not attend the final hearing, leaving the tribunal to rely on the claimant's evidence. Had they participated, they might have challenged the commission calculations or argued about the holiday pay period. More fundamentally, if they had recognised the claimant as a worker from the start and provided paid holiday and notice pay, the claim for unpaid wages would have been avoided. On the discrimination issue, a blanket homeworking policy may be lawful if applied consistently, but employers should be aware that refusing a request linked to a disability could still give rise to a duty to make reasonable adjustments – though that was not the claim here.

Why this result matters

For workers paid only on commission, this case is a reminder that they may still be entitled to holiday pay and notice pay if they meet the legal definition of a worker or employee. The tribunal's willingness to accept the claimant's calculations when the employer was absent shows the importance of keeping clear records. On discrimination, the case illustrates that a policy applied to everyone will not amount to direct discrimination, even if it has a harsher impact on someone with caring responsibilities. Claimants need to show that the protected characteristic was the reason for the treatment, not just a background factor.