UK: Employer appeals tribunal ruling that commission must be reflected in statutory holiday pay

As expected, the employment tribunal in Lock v British Gas Trading has confirmed that words can be written into the Working Time Regulations to provide that commission (or any ‘similar payment’) should be reflected in the calculation of pay for the 4 weeks' statutory holiday entitlement, mirroring the EAT's ruling on non-guaranteed overtime in Bear Scotland. Frustratingly, the more interesting issues (of whether a 12 week reference period for averaging pay is ‘representative’ as required by EU law and how the claim should be quantified) have been left to be covered in a further judgment in due course. For further details see our blog post.

British Gas has recently confirmed that it is appealing the tribunal ruling on the basis that commission and non-guaranteed overtime should not necessarily be dealt with in the same way, and that it is wrong to hold that UK domestic legislation can be interpreted purposively to give effect to EU law.