The issue to be decided by the EAT was whether, in light of an earlier reference to the Court of Justice of the European Union which concluded that commission should be taken into account when calculating holiday pay, domestic legislation can be interpreted in a way which conforms with EU law. A central part of the argument made on behalf of British Gas was that the decision of the EAT in the case of Bear Scotland & Others v Fulton & Others should not be followed. The EAT in the Bear case had decided that domestic legislation could be interpreted in a way which conforms with EU law. The Employment Tribunal (whose judgement was being appealed) had relied upon that case and had found that it was both permissible and necessary to imply words into the Working Time Regulations to ensure compliance with EU law.
The EAT dismissed the appeal. They saw no reason to depart from the reasoning in the Bear Scotland case. They stated that such a departure could only be justified if the reasoning was manifestly wrong or in other exceptional circumstances, neither of which was the case here.
British Gas have confirmed that they intend to seek permission to appeal this decision to the Court of Appeal. In the meantime the message for employers is that, for the time being at least, it remains the case that results based commission which is paid to an employee, which is not dependent upon the amount of work done by that employee, must be taken into account when calculating holiday pay.