The Supreme Court has refused British Gas leave to appeal in the long-standing holiday pay case. Last October the Court of Appeal confirmed earlier rulings that employers do have to pay commission as part of holiday pay and British Gas subsequently sought leave to appeal.
Mr Lock’s journey started with an unlawful deduction from wages claim in the Employment Tribunal for unpaid holiday. Mr Lock participated in his employer’s commission scheme whereby employees were rewarded when a customer started to purchase their gas from British Gas. As Mr Lock could not generate new business whilst on leave, his remuneration suffered in the period after his holiday.
The case was referred to the Court of Justice of the European Union to gain clarity on the relationship between holiday pay and commission and was then sent back to the Employment Tribunal, appealed to the Employment Appeal Tribunal and subsequently further appealed to the Court of Appeal.
The Supreme Court’s refusal indicates the end of the road for British Gas’ appeal. The case will be referred back to the Employment Tribunal to calculate how much holiday pay Mr Lock should receive. Assuming British Gas does not settle beforehand, the Tribunal may provide some much needed guidance on how exactly holiday pay should be calculated when employees receive commission.
The current trend of cases is certainly in favour of an inclusive approach to holiday pay, however it will be interesting to see how the landscape will look post Brexit. With a hard Brexit on the table, commentators have questioned what impact this could have on the Working Time Regulations 1998 and the concept that holiday pay should be based on all aspects of remuneration rather than basic pay.
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