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Published 26 March 2015
In Lock v British Gas an Employment Tribunal has decided that commission should be included in the first 4 weeks holiday pay required by the Working Time Regulations (WTR). In doing so the Tribunal has been guided by the decisions of the Court of Justice of the European Union (CJEU) (which heard this case last year) and Bear Scotland (which we have previously covered).
In summary the Tribunal ruled that:
This decision is not binding on courts and other Employment Tribunals. However, it reflects the way the judicial wind is blowing. The lawyers acting for British Gas are saying it is possible that this decision will be appealed. That appeal could take some time to be heard. It could be followed by a further hearing and appeal given three important questions were parked by the Tribunal for a later hearing. In our view, until there is a binding decision it is open to employers to "wait and see" on commission or proactively include it in the first four weeks of holiday pay. With the strict time limits set out in Bear Scotland and the new regulations capping backdating of claims to two years coming in on 1 July 2015 employers may well decide to wait and see.
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