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Holiday pay and commission: the saga continues



The Court of Appeal has today confirmed that employers must include results-based commission when calculating holiday pay and that the UK Working Time Regulations 1998 should be interpreted with reference to the EU Working Time Directive 2003. The Court's decision, which essentially confirmed the decision of the Employment Appeal Tribunal, is just the latest step in the long running litigation of Lock v British Gas Trading. British Gas has apparently already confirmed that they intend to appeal the decision to the Supreme Court.

While the Court expressed sympathy for British Gas's position, and acknowledged that their view on this matter had wavered as they prepared their decision, they confirmed that the Working Time Regulations were introduced "solely and deliberately" in order to implement the EU Working Time Directive and that the courts should presume that the UK government intended the UK to entirely fulfil its obligations under the Directive – even though the position in relation to normal remuneration under EU law was not clarified until much later.

In the long run, what happens to the Working Time Regulations 1998 after Britain leaves the European Union is a big unknown but I suspect that this decision will not have enhanced the government's view of this much maligned piece of legislation.

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