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On 22 February 2016 the Employment Appeal Tribunal (EAT) rejected an appeal against last year’s Employment Tribunal ruling in the case of Lock v British Gas. British Gas has asked for permission to take the case to the Court of Appeal.

The Lock case concerns whether employers are obliged by the Working Time Regulations 1998 (WTR) to take into account commission payments when calculating holiday pay. It has already been established that holiday pay under EU law must take account of elements of normal pay such as commission. The EAT ruled that domestic law, which applies to all employers, must be interpreted in a way that conforms to EU law even if that means in effect reading words in to legislation.

Any further appeal is unlikely to be heard until next year. Thousands of other claims against other employers in England, Wales and Scotland have been stayed, pending today’s decision. Most of those employers will now be asking for that stay to remain in place until a definitive ruling.

The Working Time Regulations (WTR) was introduced by the UK government to give effect to the Working Time Directive (WTD). The WTD requires a minimum of four weeks’ paid holiday for all workers. In addition, workers in the UK are entitled to an additional 1.6 weeks’ paid leave over and above the minimum entitlement set out under the WTD.

The above only applies to the four weeks holiday leave granted as a minimum under the WTD not the additional 1.6 weeks allowed under the WTR. That means that employers may be required to calculate different periods of holiday leave at different rates.


Standout firm known for its personal insolvency work for clients including private companies, individuals and governmental institutions. Frequently acts for insolvency practitioners, assisting with the realisation of assets, both in the UK and abroad.

Chambers and Partners

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