Mr B Teggin v Vital Technology Group Ltd — 2022

Mr B Teggin was employed by Vital Technology Group Ltd as a Business Development Director from 5 February 2018 to 31 August 2021. At the hearing on 8 February 2022 before Employment Judge Fredericks, he brought claims for a salary shortfall, unpaid commission, accrued but untaken holiday pay, and underpaid holiday pay said to arise because his holiday pay did not include commission.

The tribunal dismissed the salary, commission, and accrued-but-untaken-holiday claims. It found that the claimant's final payslip showed a gross salary payment of £3,750 and that the £318.89 he claimed reflected the tax code used on the payslip, not an underpayment of salary. It also found that the claimant had not submitted commission claims through the respondent's system, so no commission had been approved for payment. On the holiday balance issue, the claimant accepted he did not have 39 days' allowance, and the respondent's records showed he had only 20 days' entitlement and had taken them all.

The claimant succeeded on the separate complaint that holiday pay had been calculated at basic rate only and had not included commission. The tribunal accepted that he could not earn commission while on leave and that commission formed a regular part of his remuneration. Referring to Lock v British Gas [2014] CJEU C-539/12 and Lock and Another v British Gas Trading Ltd (No 2) [2016] IRLR 946 CA, the tribunal held that average commission pay had to be included when calculating holiday pay under the Working Time Regulations 1998. Using the claimant's commission earnings of £16,433.40 over the holiday year, the tribunal calculated an average daily commission figure of £98.40 and awarded £1,968.00 for the 20 holiday days paid only at basic rate.