Lock v British Gas was back in the EAT this week and we were tweeting live from the hearing. The EAT heard submissions on behalf of British Gas, Mr Lock and the Secretary of State for Business Innovation and Skills (“BIS”).

In a mainly technical debate British Gas’ principal argument was that Bear Scotland, relied upon by the Employment Tribunal in deciding Lock, incorrectly concluded that our domestic legislation could be interpreted to give effect to EU law. It argued that the words read into the legislation by the court had amounted to “judicial vandalism”, giving the provision a meaning that went against the grain of the legislation. British Gas submitted that the wording had been positively chosen by the draftsman and, even if it was not a deliberate departure from European Law, the court could not go against the legislature’s intention.

British Gas’ secondary argument was that commission and non-guaranteed overtime are dealt with under different provisions, which use different language, and that the Tribunal incorrectly concluded that the Bear Scotland case, about overtime, was relevant to the outcome of Lock.

Both Lock and BIS disagreed with these points, arguing that the interpretation imposed by the Tribunal reflected the core and essence of the Working Time Regulations, which were drafted to implement the Working Time Directive.

It was also suggested that, if the EAT was minded to go against the earlier EAT decision in Bear Scotland, it should allow an appeal to the Court of Appeal, to avoid the uncertainty that would flow from the inconsistency between the EAT decisions.

No indication was given as to when a decision would be reached. However, it is important to note that, even if the judgment gives definitive guidance that results-based commission must be included in holiday pay, many practical aspects such as reference periods remain to be decided and are likely to be remitted to the Tribunal.