British Gas Trading Ltd v 1) Mr ZJ Lock 2) Secretary of State for Business, Innovation and Skills
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Singh |
| Neutral Citation | UKEAT/0189/15/BA |
| Court | Employment Appeal Tribunal |
| Subject Matter | Working Time Regulations,Working Time Regulations - Holiday pay,Not landmark |
| Date | 22 February 2016 |
| Published date | 15 March 2017 |
Copyright 2016
Appeal No. UKEAT/0189/15/BA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 7 & 8 December 2015
Judgment handed down on 22 February 2016
Before
THE HONOURABLE MR JUSTICE SINGH
(SITTING ALONE)
BRITISH GAS TRADING LTD APPELLANT
(1) MR Z J LOCK
(2) SECRETARY OF STATE FOR BUSINESS, INNOVATION
AND SKILLS RESPONDENTS
Transcript of Proceedings
JUDGMENT
UKEAT/0189/15/BA
APPEARANCES
For the Appellant MR JOHN CAVANAGH QC
(of Counsel)
Instructed by:
Eversheds LLP
Bridgewater Place
Water Lane
Leeds
LS11 5DR
For the First Respondent MR SIMON CHEETHAM
(of Counsel)
and
MS VICTORIA WEBB
(of Counsel)
Instructed by:
Unison Legal Services
Unison Centre
130 Euston Road
London
NW1 2AY
For the Second Respondent MR ADAM TOLLEY QC
(of Counsel)
Instructed by:
Government Legal Department
One Kemble Street
London
WC2B 4TS
UKEAT/0189/15/BA
SUMMARY
WORKING TIME REGULATIONS - Holiday pay
Mr Lock was at the material time employed by British Gas as a salesman. His remuneration
package included a basic salary plus commission which was based on the number and type of
contracts he persuaded customers to enter into; in other words it was results-based commission
and did not depend on how much work was done. He took a number of days’ holiday to which
he was entitled. However, the remuneration paid to him during holidays consisted only of basic
salary and any commission which had been earned earlier but happened to be paid at that time.
Since he was not working he could not earn any commission while he was on holiday. He
complained to the Employment Tribunal that that method of calculating his holiday pay was
contrary to the requirements of section 221 of the Employment Rights Act 1996 and
regulation 16 of the Working Time Regulations 1998, as amended. He submitted that the
domestic legislation could be, and therefore had to be, interpreted in a way which conforms to
the requirements of Article 7 of the European Union’s Working Time Directive. There had
previously been a reference made by the Employment Tribunal to the Court of Justice of the
European Union, which held that Article 7 of the Directive requires results-based commission
to be taken into account when calculating an employee’s holiday pay. The Employment
Tribunal then held that it was possible to interpret the domestic legislation in a way which
conforms to the requirements of the Directive by reading words into regulation 16. British Gas
appealed.
Held, the appeal would be dismissed. The Employment Appeal Tribunal had recently decided
that the domestic legislation can be interpreted in a way which conforms to the requirements of
the Directive: see Bear Scotland & Others v Fulton & Others [2015] ICR 221. The general
principle is that, although the Appeal Tribunal is not bound by its own decisions, they are of
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