It was
announced earlier this week that Eversheds has lodged an appeal to the
Employment Appeal Tribunal (EAT) on behalf of British Gas Trading Limited.
As you will
recall, Mr Lock submitted a claim to the Employment Tribunal (ET) against
British Gas for unlawful deductions from his wages on the grounds that his
commission payments (which equated to 60% of his remuneration) should have been
taken into account when calculating his holiday pay. The case was referred to
the European Court of Justice (ECJ) that concluded that Mr Lock’s commission
was directly linked to his work and so must be taken into account when
calculating holiday pay.
In the
judgment handed down by the ET in March this year, the ET drew on the EAT’s
guidance in Bear Scotland Ltd and others v Fulton and others which
concluded that non-guaranteed overtime should be included in holiday pay
calculations (you can read our previous blog on this case by clicking here).
Eversheds has
stated that the appeal lodged against the ET’s decision by British Gas is on
the basis that:
·
commission
and non-guaranteed overtime are dealt with under different provisions and use
different language, and the ET incorrectly included that Bear Scotland,
has any bearing over the outcome in Lock; and
·
in
any event, the EAT in Bear Scotland incorrectly concluded that UK
domestic legislation can be interpreted purposively to give effect to EU law.
It is hoped that
the EAT should hear the case before the end of the year but it is another
reminder that we haven’t yet heard the last on the holiday pay saga.
