It was recently reported in the press that certain trade unions are encouraging their members to launch claims against their employers in respect of payments they may be owed as a result of the recent case of Lock v British Gas Trading Ltd. In that case, the European Court of Justice ruled that commission had to be taken into account when calculating holiday pay, rather than just basic pay.
As most UK employers only pay basic salary for holidays, the potential impact of the ECJ’s decision, and other similar cases that have been brought since, is substantial, and could include unlawful deductions claims stretching back a significant number of years.
It appears that two of the country’s biggest unions are taking steps to actively promote claims from their members. Meanwhile, employers groups are pressing the Government to introduce emergency legislation that will limit the impact of the rulings which are at odds with current UK law. Employers have warned that unless such measures are taken, the resultant legal costs could seriously threaten economic recovery.
The two main options open to employers remain unchanged. You can either:
1. Take steps to mitigate past liabilities and reduce future liabilities by introducing changes to holiday pay so that it includes all elements of normal pay (e.g. overtime and commission). The legal argument here would then be that this “breaks” the series of any unlawful deductions which an ET deems to have been made, meaning that employees have only three months from the date of the change to bring a claim (i.e. the clock would start ticking for employees). However, the success of this strategy is not guaranteed. Tribunals may determine that it was not reasonably practicable to bring a claim in time if the legal position was uncertain.
2. Wait for the outcome of the aforementioned EAT cases, and Employers’ appeals for emergency legislation to limit the impact of the rulings to date.
Whichever route you choose to take, it is advisable in the first instance to review your existing methods of calculating holiday pay and assess potential liability. It may also be worth considering establishing a fund in this regard wherever possible.