CJRS - Discretionary 'Commsion'

[eeldome]

Umbrella companies and the FCSA are saying one of the key issues stopping Umbrella companies from furloughing workers is they need clarity on how to calculate furlough pay. They and many others keep referring to the unfortunately termed 'commission' element of our pay as being discretionary. Anyone know why they think it is discretionary? Has anyone actually looked at an Umbrella Contract of Employment? Mine is 18 pages and has 120 clauses. The word 'Discretionary' does not appear in the contract at all. The contract states "Your pay will be calculated and paid in accordance with this clause 3." It then states "Whilst on Assignment, you will be entitled to be paid Basic Pay for the hours that you work" and "In addition to payment under clause 3.2 you may be entitled to commission." and "Commission will only be paid once the Company has received payment from the Client or End User and will be added to payments made to you on a weekly/ fortnightly/monthly basis." This doesn't make it discretionary. Once the Umbrella company has received payment from the client or recruitment agent they have to pay me the 'commission' which they do as part of my pay for the specific week. They can't use their discretion and decide not to pay it to me. Am I missing something? Some workers may have contracts that specifically term the 'Commission' or 'Bonus' as discretionary or perhaps not be entitled to 'Commission' or 'Bonus' at all but that still does not make it discretionary.

[WTFH]

Umbrella companies and the FCSA are saying one of the key issues stopping Umbrella companies from furloughing workers is they need clarity on how to calculate furlough pay.

OK

They and many others keep referring to the unfortunately termed 'commission' element of our pay as being discretionary.

Can you point to somewhere that the term discretionary is used with regard to commission.

"Commission will only be paid once the Company has received payment from the Client or End User" ... Once the Umbrella company has received payment from the client or recruitment agent they have to pay me the 'commission' which they do as part of my pay for the specific week.

OK, so commission is paid upon receipt of payment from the client, not on receipt of timesheet from you. While you might say you are getting paid for a particular week, you might find the reality is you get basic pay based on you submitting a timesheet and then a few weeks later, when the umbrella gets paid, you are getting the commission for that week.

Two questions:
1. Who is your umbrella?
2. What is the actual issue you have?

[northernladuk]

I hope your contract doesn't look like your post

[eeldome]

The point I'm trying to make and ask for input on is serious. Myself and many other workers are not being furloughed by Umbrella companies partly because the Umbrella claims they don't know how to calculate the furlough pay. The think they can only count NMW and cannot include discretionary 'Commission' or 'bonus' which is the bulk of our pay.

I'm asking if anyone understands why it is called discretionary because looking at my contact of employment it doesn't appear to be.

[WTFH]

The point I'm trying to make and ask for input on is serious. Myself and many other workers are not being furloughed by Umbrella companies partly because the Umbrella claims they don't know how to calculate the furlough pay. The think they can only count NMW and cannot include discretionary 'Commission' or 'bonus' which is the bulk of our pay.

I'm asking if anyone understands why it is called discretionary because looking at my contact of employment it doesn't appear to be.

You've called it discretionary, but not shown where the umbrella calls it that.

I wouldn't be surprised if the term was used, as it is commission, which is not guaranteed to be paid. You only get paid commission if and when the umbrella gets paid. If they do not get paid, then you do not get the commission. In that sense, it is discretionary because it is not compulsory or automatic, but is dependent on other things outside the control of the Umbrella.

[andydd68]

I believe Martin Lewis briefly covered this and would depend on what your contract say about 'commission' although he was referring to "normal" jobs not Umbrella Cos.

[LiviHam]

I believe Martin Lewis briefly covered this and would depend on what your contract say about 'commission' although he was referring to "normal" jobs not Umbrella Cos.

Martin Lewis tweeted this morning that the latest agreed statement from HMRC is that “Payments the employer is obliged to make to the employee should be included in the reference salary. Variable payments that are specified in a contract and are always paid in reality, can be included within the reference salary.” I believe this to mean that the reference salary should be NMW + bonus, i.e. the normal, full salary.

[mrdonuts]

Martin Lewis tweeted this morning that the latest agreed statement from HMRC is that “Payments the employer is obliged to make to the employee should be included in the reference salary. Variable payments that are specified in a contract and are always paid in reality, can be included within the reference salary.” I believe this to mean that the reference salary should be NMW + bonus, i.e. the normal, full salary.

is the real issue thats theres nothing in it for the umbrella, theyre doing work to process the furlough payment without gettinh their grubby mitts on any money

[ComplianceLady]

My understanding is the umbrellas don't have certainty - you can interpret the rules one way or the other but they can't pay and run the risk that HMRC disagrees down the line, they need certainty. Umbrellas are furloughing (not all of them but I know of a few) but only based on the NMW element as that's all they're certain they're able to claim.

It would be pretty easy for HMRC to clarify this, the fact they aren't makes me think that they would come back for the commission element.

[andydd68]

This again featured on Martin Lewis TV show last night (with reference to Umbrella Cos) but there seemed 2 competing points of view but with HMRC staying mysteriously silent.