A reference from the Employment Tribunal to the European Court of Justice resulted in it being confirmed that Mr Lock's commission payments were directly linked to the work he carried out and so must be taken into account when calculating holiday pay. The Tribunal dealt with this by inserting new wording into Regulation 16(3) of the Working Time Regulations 1998. The initial Tribunal judgement also followed an earlier EAT decision in Bear Scotland Ltd & Others v Fulton & Others which had concluded that non-guaranteed overtime should be included in holiday pay calculations.
British Gas appealed the Tribunal's judgement on two grounds:-
- commission and non-guaranteed overtime are distinct concepts and as such the Tribunal was wrong to conclude that Bear Scotland, which concerned overtime, had any bearing on the outcome of Lock
- the EAT in Bear Scotland incorrectly concluded that the domestic legislation could be interpreted purposively to give effect to EU law
The EAT heard this appeal in December 2015 and have issued their judgement today, 22 February 2016. Although the judgement is not due to be published until this afternoon, it is being reported that the EAT have confirmed that Mr Lock is entitled to have commission included in the calculation of his holiday pay.
Further details of the judgement will be reported upon once it is available however it may well not be the last word on the matter. Other issues which have still to be determined by the courts include whether (1) overtime that is genuinely voluntary and (2) bonus payments require to be included in holiday pay calculations.