Can domestic legislation be interpreted in a way which conforms to EU law on holiday pay?
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Holiday Pay: Full Lock Decision available

Thanks to Karen Jackson of didlaw for preparing this case summary
Can domestic legislation be interpreted in a way which conforms to EU law on holiday pay?

Yes, held the EAT in Lock v British Gas, upholding the submissions of UNISON legal who represented Mr Lock.

Domestic legislation is contained in the Working Time Regulations 1998 ('WTR') and sections 221-224 of the Employment Rights Act 1996. European Union law is contained in Council Directive 2003/88/EC, the Working Time Directive.

The right to paid leave is a pillar of EU social law from which there can be no derogation.

Mr Lock was paid basic salary and results-based commission but only basic pay during leave. A reference was made to the CJEU. An employment tribunal held that results-based commission must be included when calculating holiday pay and that it was possible to read words into the WTR. British Gas appealed.

The EAT dismissed the appeal. It is permissible - and indeed necessary - to imply words into the WTR to comply with EU law. Parliament's intention must have been to comply with EU law. Following Bear Scotland (concerning guaranteed overtime), the EAT saw no reason to depart from the reasoning of Langstaff J. The EAT considered a number of other authorities including the Court of Appeal decisions in Bamsey and Evans but concluded that Bear is correct. The EAT is not bound by its own previous decisions but they are persuasive and may only be departed from if manifestly wrong or in other exceptional circumstances. Such departure could not be justified.

For more on holiday pay, come along to Daniel Barnett's Employment Law MasterClass 2016.  Watch our video here.

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Case summaries are written by a panel of about 40 specialist employment barristers and solicitors.
Daniel Barnett is a barrister with 20 years’ experience litigating and advising in employment, HR and associated litigation. He is primarily a litigator, described in legal directories as “tenacious”, “inexhaustible” and “an excellent advocate”. He has been instructed by a Royal Family, international airlines, various FTSE-250 companies, local authorities, NHS Trusts, as well as a myriad of SMEs. Employee clients range from senior executives of quoted companies through to David & Victoria Beckham’s nanny. His specific areas of interest are post-termination restrictive covenants, age discrimination and retirement issues, industrial law (strikes), employment agencies and permanent health insurance disputes. He practises from Outer Temple Chambers, a highly regarded set of Chambers in London.
Outer Temple Chambers’ employment and discrimination team is an important player in the field. We have acknowledged expertise representing both employer and employee, covering all aspects of collective and individual employment law, including High Court breach of contract and injunction proceedings, and all aspects of individual and collective employment rights.

We appear regularly in the civil courts and tribunals, before the Central Arbitration Committee, all appellate courts, and in mediations. Members of our team also accept instructions to act as external decision-makers, and to advise public and private sector employers and service-providers.

Members of Chambers who advise and represent in employment law disputes, listed in order of call (experience), are:-
 
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Please see
www.outertemple.com for further details.
For further information, or to enquire about his
availability, please contact Daniel Barnett's clerks on 020 7353 6381 or visit www.danielbarnett.co.uk
Daniel Barnett
Outer Temple Chambers
The Outer Temple
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daniel.barnett@outertemple.com
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