Mr Phil Clark v Peninsula Business Services Limited — 2025

The tribunal found that the claimant, a Business Development Manager paid a basic salary plus commission, had only been paid basic pay for annual leave taken during the relevant period. The respondent did not dispute that commission had not been included in holiday pay for leave taken in the 24 months before the claimant’s employment ended on 31 December 2023. The parties agreed the methodology and underlying data for calculating the unpaid commission.

On liability, the tribunal held that for the period in issue, 1 March 2022 to 31 December 2023, it remained bound by Lock v British Gas Trading Ltd and the Court of Appeal decision in British Gas Trading Ltd v Lock. It found that the Working Time Regulations 1998 were retained EU-derived domestic legislation and that subsequent legislative changes did not alter the applicable position for events occurring before the end of 2023. The tribunal therefore concluded that commission should have been included in holiday pay and that the respondent’s failure to do so breached regulation 16 of the Working Time Regulations 1998 and section 13 of the Employment Rights Act 1996.

The tribunal rejected the respondent’s argument that Lock should not apply because the claimant was not in fact deterred from taking leave, holding that Lock did not require a subjective, case-by-case inquiry into whether a particular worker had been dissuaded from taking holiday. It also found it unnecessary to decide whether the two-year backstop ran from 31 December 2023 or 25 February 2024, because the claimant had taken no leave in the first two months of 2022 and the agreed calculation was the same either way. The complaint of unauthorised deductions from wages was upheld and the respondent was ordered to pay £8,483 gross.