11 December 2015 #Employment
This is an update to our detailed report on holiday pay in July- Where are we on holiday pay?
The appeal in Lock v British Gas was heard in the Employment Appeal Tribunal this week. The decision, which is expected to be released in January or February 2016, could have very significant consequences for holiday pay entitlements.
The part of British Gas’s appeal with wide significance is a challenge the EAT’s 2014 judgment in Bear Scotland and others which found that in order to give effect to the EU Working Time Directive, the UK Working Time Regulations can be interpreted purposively.
Following this approach, the employment tribunal in Lock also added wording to the Working Time Regulations as a matter of legal interpretation. ,British Gas’s appeal argues that such wording cannot be added to the Working Time Regulations by the courts and that the Regulations do not implement the Directive.
If this appeal in Lock succeeds, the decision in Bear Scotland and others would become very questionable. If such reasoning proved to be correct, before any claims for payments of this kind could succeed, the Working Time Regulations would first need to be amended by the government. Perhaps more importantly, any new regulations could not have retrospective effect.
So until the decision in the Lock appeal is released, the legal liability of employers on the issue of is uncertain. There is also the possibility of a further appeal to the Court of Appeal. If the matter goes to further appeal, it is likely to be at least another year until the matter is resolved.