Claimant v Peninsula Business Services Limited
Outcome
Individual claims
The tribunal found that the respondent unlawfully failed to include commission payments in the claimant's holiday pay for the period 1 March 2022 to 31 December 2023. Applying Lock v British Gas and the Court of Appeal decision in British Gas Trading v Lock, the tribunal held that these authorities remained binding as retained EU case law under the European Union (Withdrawal) Act 2018, requiring commission to be included in holiday pay calculations.
Facts
Mr Clark was employed as a Business Development Manager on a salary of £30,000 plus commission of 10% on new business and 2.5% on renewals, paid approximately nine months in arrears. He resigned on 1 December 2023 with four weeks' notice, leaving on 31 December 2023. During 2022 and 2023, he was only paid basic salary for holiday leave taken, without any commission element being included in his holiday pay.
Decision
The tribunal held that the respondent's failure to include commission in holiday pay was an unlawful deduction from wages under s.13 ERA 1996. The tribunal found that Lock v British Gas and the Court of Appeal decision in British Gas Trading v Lock remained binding as retained EU case law under the European Union (Withdrawal) Act 2018, as the claim related to matters occurring before 31 December 2023. The respondent was ordered to pay £8,483 gross representing unpaid commission for holiday taken in the 24 months prior to termination.
Practical note
Post-Brexit but pre-2024, Lock v British Gas remains binding authority requiring commission to be included in holiday pay as retained EU case law under the European Union (Withdrawal) Act 2018, with the absence of the Charter of Fundamental Rights not affecting this conclusion.
Award breakdown
Award equivalent: 14.7 weeks' gross pay
Legal authorities cited
Statutes
Case details
- Case number
- 1400522/2024
- Decision date
- 26 March 2025
- Hearing type
- full merits
- Hearing days
- 1
- Classification
- contested
Respondent
- Sector
- professional services
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Business Development Manager
- Salary band
- £30,000–£40,000
Claimant representation
- Represented
- No