The EAT is to be asked to look again at holiday pay, after British Gas, represented by Eversheds, lodged an appeal against the recent Employment Tribunal decision in the Lock v British Gas case. The appeal relates to the EAT’s decision last year in Bear Scotland v Fulton that EU law can be read so as to require employers to take into account non-guaranteed overtime payments when calculating statutory holiday pay under Regulation 13 of the Working Time Regulations 1998. In March this year the Employment Tribunal reached the same conclusion in relation to commission payments in the Lock case. British Gas is appealing on two grounds i.e. (i) commission and non-guaranteed overtime are dealt with under different provisions, which use different language and the ET incorrectly concluded that Bear Scotland overtime case, had any bearing on the outcome of Lock; and (ii) in any event, the EAT in Bear Scotland incorrectly concluded that UK domestic legislation could be interpreted purposively to give effect to EU law. The appeal will probably be heard by the EAT towards the end of this year. 

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