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Understanding Law May be Difficult, But Reading it should at Least be Easy

Published by Employment Law Clinic in the blog Employment Law Clinic's blog. Views: 654

Knowing what a piece of legislation means in practice isn’t always the easiest thing to do, hence why we all need to hire legal experts to advise us. But at least reading the piece of legislation itself shouldn’t be too difficult – it’s just words on a page approved by Parliament.

Ok, it can get a little more tricky to read an amended piece of law, as you’d need to look at the original text, and then the amendments, which may well say something like “amend section 2 by deleting the words after the second comma, and inserting blah, blah, blah.”, but even that can be made easier with reference books that do all the hard work for us, producing what is the latest version.

What about the Working Time Regulations 1998 though? They’ve be subject to some amendments over the years, but are at least available in reference books & online in the current, amended, form.

Except that is for Regulation 16(3)(e): it’s not even clear if such a subsection exists! (You can read Regulation 16, with (3)(e) included as an optional extra here.)

Confused? Well, a hearing at the Employment Appeal Tribunal (EAT) this week is the latest stage in a long-running tribunal claim, Lock v British Gas, that is set to determine this question – at least unless there is another appeal. The question for the EAT is whether, as an employment tribunal ruled, the current Working Time Regulations are compatible with EU law in regards to holiday pay – specifically commission, as workers that earn commission should have this considered as part of the regular pay, when calculating holiday pay.

To explain this point a little further, the way the EU laws work is that the EU issue a “directive” to member states. The directive will say something along the lines of introduce a law that does X, Y, and Z. Member states (including the UK) will then introduce laws that are intended to provide for the directive into local law. The question in the Lock case is whether the UK government did do that when it introduced the Working Time Regulation in 1998.

When the case first went before an employment tribunal, a question that the tribunal couldn’t decide was whether or not the Working Time Directive should be read to include commission payments as part of regular pay. That question was referred to the European Court, who said it should – matter resolved.

Except the employment tribunal then had to decide whether the Working Time Regulations (remember, the Regulations are the locally introduced law; the directive is the EU’s instruction on what to cover in the local law) actually did incorporate what it was meant to: whether the law as written could be read to allow for the inclusion of commission payments as part of regular pay. The employment tribunal ruled that it could, with the insertion of Regulation 16(3)(e), which it then assumed to exist in the Regulations. And that is the subject of this week’s appeal.

The EAT could rule that the Regulations cannot be read to include 16(3)(e) or anything similar, in which case the government will be obliged to introduce amendments to the Regulations to make them compliant with the directive, and employers will continue to be in the dark about what to do with commission payments in the meantime. Or it could rule that the employment tribunal was correct to say that the Regulations could be read to allow for the European Court’s judgment, and either agree with 16(3)(e), making this binding on future tribunals (and of course, employers too), or substitute this with its own form of words – again none of which will ever have been printed on a page of legislation that was approved by Parliament.

The hearing is on Tuesday & Wednesday, but a judgment may take some time after that. And until then, even reading what is or isn’t actually on that piece of paper that may or may not have ever actually got approved by Parliament will remain a challenge. And employers will continue possibly to leave themselves liable to claims for not paying holiday pay, uncertain about their current legal obligations – and their advisers can only speculate on what these may be.
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