EAT 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 and Others v Fulton and Others [2015] ICR 221. The general principle is that, although the Appeal Tribunal is not bound by its own decisions, they are of persuasive authority and it will follow them. The established exceptions to that general principle are:
(1) where the earlier decision was per incuriam, in other words where a relevant legislative provision or binding decision of the courts was not considered;
(2) where there are two or more inconsistent decisions of the Appeal Tribunal;
(3) where there are inconsistent decisions of the Appeal Tribunal and another court or tribunal on the same point, at least where they are of co-ordinate jurisdiction, for example the High Court;
(4) where the earlier decision is manifestly wrong;
(5) where there are other exceptional circumstances.
The first three of those exceptions were not relevant in the present case. Despite the submissions made on behalf of British Gas, the decision in Bear Scotland was not manifestly wrong. Further, there were no exceptional circumstances such as to justify a departure from that decision in this case.
Singh HHJ
[2016] UKEAT 0189 – 15 – 2202, [2016] ICR 503
Bailii
Employment Rights Act 1996 221, Working Time Regulations 1998 16
England and Wales
Citing:
Cited – Bear Scotland Limited v Fulton, and similar EAT 4-Nov-2014
EAT WORKING TIME REGULATIONS: HOLIDAY PAY – DAMAGES FOR BREACH OF CONTRACT – UNLAWFUL DEDUCTION FROM WAGES
The EAT held that Article 7 of the Working Time Directive is to be interpreted such that payments . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 10 November 2021; Ref: scu.565100
