The Association of Professional Staffing Companies (APSCo) has responded to the Court of Appeal’s decision to uphold an earlier Employment Appeals Tribunal (EAT) decision that holiday pay must include results-based commission.

The EAT’s ruling on ‘British Gas v Lock’ in February confirmed that employers must pay commission as part of holiday pay, in line with requirements of Article 7 of the EU Working Time Directive.

The outcome of the appeal, announced on 7 October 2016, has been keenly anticipated by the professional recruitment sector due to the comparable nature of sales-based commission in recruitment.

“Employers have been maintaining a watching brief since British Gas decided to bring this case to the Court of Appeal,” Tania Bowers, General Counsel at APSCo, said. “Consequently, we have been advising members that they may wish to ‘wait and see’ the result of the appeal before implementing any changes. However, while this case may now be brought before the Supreme Court, the general consensus is it is unlikely to be overturned and we are advising members to consider applying the law now and certainly look to mitigate their exposure.”

“There is still some uncertainty over how employers should calculate average commission payable as part of normal remuneration,” Bowers said. “The Court of Appeal did not specifically confirm that normal remuneration should be calculated by reference to the average remuneration over the 12 weeks prior to the leave taken, known as the reference period. The Court of Appeal made clear its decision is confined to the facts of the case namely a results based commission scheme, it should not be applied to annual bonus payments or payments triggered by hitting commission thresholds.”  

“In addition, the need to pay normal remuneration only applies to the 20 days of WTR holiday, not bank holidays or additional annual leave, where it remains generally acceptable to pay basic pay,” Bowers said. “We do not underestimate the complexity associated with implementing changes in this area, which is why we are considering how APSCo members can apply the law whilst minimising their administrative burden.”

“APSCo members will receive a briefing at this week’s members meeting with a written advice from one of our legal affiliates scheduled to be delivered next week,” Bowers said. “However, we are also advising them to take their own legal advice on their particular commission schemes and how the law applies.”