We can confirm that the recent Employment Tribunal decision in the Lock v British Gas Trading Limited case has been appealed by British Gas.
As you will no doubt be aware, the case concerns the issue of including commission in the calculation of holiday pay. In March this year the Tribunal concluded that domestic legislation (the Working Time Regulations 1998 or WTR) should be read to make them compliant with EU law.
British Gas is appealing on two grounds:
1. That commission and non-guaranteed overtime are dealt with under different provisions, which use different language, and that the Tribunal incorrectly concluded that the Bear Scotland case, about overtime, was relevant to the outcome of Lock.
2. In any event, the Employment Appeal Tribunal (EAT) in Bear Scotland incorrectly concluded that our domestic legislation could be interpreted to give effect to EU law.
Although the Tribunal decision was unpopular with employers – because it held that commission should, in principle, be factored into the holiday pay calculation – we have been waiting for further guidance on the specific method of including commission when calculating holiday pay.