Court of Appeal dismisses British Gas’ appeal in Lock

The Court of Appeal handed down judgment today in the case of Lock and another v British Gas Trading Ltd [2016] EWCA Civ 983, upholding the EAT’s decision earlier this year that holiday pay must include results-based commission.

The Court of Appeal affirmed the EAT’s finding that the employment tribunal had not erred in reading words into the Working Time Regulations 1998 (SI 1998/1833) to make domestic legislation consistent with EU law. It confirmed that the holiday pay for an employee with statutorily defined ‘normal hours’, whose remuneration does not vary with the amount of work done, should include an element referable to the amount of results-based commission normally earned (not, as the wording proposed by the ET suggested to all types of commission; Rimer LJ proposed an amendment to the ET’s judgment to confine it to the circumstances of this case).

The Court of Appeal declined to give a view on how these principles could apply to different types of cases such as banker’s bonuses, emphasising that “it is no part of this court’s function to do more than deal with the instant appeal.”

British Gas have applied for permission to appeal to the Supreme Court.

Read the full judgment here.

Caspar Glyn QC considered the EAT judgment in an earlier blog post; watch this space for further thoughts from Caspar on today’s Court of Appeal decision.