The Supreme Court yesterday refused British Gas permission to appeal the Court of Appeal ruling that statutory holiday pay must include results-based commission (Lock v British Gas Trading).
This provides employers with final confirmation that the calculation of pay for the first 4 weeks of statutory holiday must include an amount in respect of results-based commission, as well as non-guaranteed compulsory overtime and most likely voluntary overtime too (although as yet the latter has only been decided at first instance). The Working Time Regulations must be read purposively to implement EU law to this effect. In terms of the reference period for averaging pay including results-based commission, the parties in this case accepted that the provisions in the Employment Rights Act 1996 averaging pay over a 12 week period should apply.
Although a hard Brexit would enable the Government to change this rule in the future, the Prime Minister's commitment to maintaining workers' rights makes this unlikely in the short term.