Anyone who has children will be familiar with the question asked by children – “are we nearly there?”
That epithet could easily be applied to the long running case of Lock v British Gas. This case started its long journey through the tribunal system as long ago as 2012 – and the journey continues with the Court of Appeal hearing British Gas’ Appeal!
The Court of Appeal heard the latest appeal on Monday 11 July 2016 but have reserved judgement and we may not have a ruling for another couple of months.
Mr Lock’s case was that his employer did not include an element of commission in his holiday pay when he went on holiday and this constituted an illegal deduction from pay.
His case was fast tracked by the Employment Appeal Tribunal to the European Court of Justice (ECJ) which found in his favour. And, on being remitted to the Employment Tribunal, a clause was inserted into the Working Time Regulations.
“as if in the case of the entitlement under regulation 13, a worker with normal working hours whose remuneration includes commission or similar payment shall be deemed to have remuneration which varies with the amount of work done for the purposes of s221 (Employment Rights Act)”
So, what was the basis of the British Gas appeal?
The main question was whether or not the Working Time Regulations 1998 could be interpreted to include commission in Mr Lock’s holiday pay. Whether or not a decision to include commission in holiday pay for workers such as Mr Lock might be too broad and have unintended consequences.We await the decision of the Court of Appeal
Comment
This case has been rumbling along now for some 4 years and it has caused much uncertainty among employers. It is generally accepted that this case cannot be treated in isolation and the overtime cases of overtime (Bear Scotland v Fulton etc.) are intrinsically linked to this one.
Some employers have bitten the bullet and changed their policies to include commission and overtime in holiday pay. Others have delayed making changes until the final outcome of this case is known.
