Mr A Jones v Vertu Accident Repair Ltd: 8002824/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002824/2025
Between
Mr A JonesClaimantVertu Accident Repair LtdRespondent
Before
Employment Judge M RobisonDate 28 May 2026
JUDGMENT
The judgment of the Employment Tribunal is that the claimant’s claim for holiday pay is not well- founded and is dismissed.
REASONS
[1]The claimant raised a claim in the Employment Tribunal for unpaid holiday pay (unlawful deduction from wages) on 19 November 2025. The claimant remains employed by the respondent, who resists the claim.[2]At this final hearing the Tribunal heard evidence from the claimant and for the respondent from Mr D Evans. Unusually, witness statements had been ordered in this case, although there was no reading day allocated and I did not receive the file of documents to be relied on until just shortly before the hearing.[3]Consequently, although I had read the witness statements, I asked the claimant a large number of supplementary questions and he gave oral evidence on the documents upon which he relies. I invited Mr Jackson to ask as many supplementary questions of Mr Evans as he saw fit, and to take him to the relevant documents upon which the respondent relies.[4]After evidence, I heard oral submissions from Mr Jackson, who supplemented skeletal submissions lodged that morning. I then heard oral submissions from Mr Jones. Findings in fact[5]The Tribunal finds the following facts proved, admitted or agreed based on the evidence heard and the documents referred to.[6]By letter dated 8 August 2023, the claimant was offered employment with the respondent as a smart repair technician commencing 4 September 2023.[7]The claimant had previously worked for the respondent from 2015 to 2021 in the roles of sales executive, business manager and general sales manager.[8]At that time, his basic salary was £30,000 with the opportunity to earn a bonus under a stepped payment scheme based on productivity, paid one month in arrears.[9]The hours of work were 42.5 each week, Monday to Friday 8.30 to 17.30 with 30 minutes lunch break.[10]Employees with up to 1 year’s service were entitled to 25 days holiday plus 8 days of bank holiday. After two years, employees were entitled to 26 days holiday plus 8 days of bank holiday.[11]The claimant is entitled to 26 days holiday plus 8 bank holidays.[12]Monthly bonus (commission) is calculated based on the value of the work completed and invoiced within each month. Each job contributes to a monthly invoice total, which determines the level of bonus payable under the banding system. The percentage varies with the total invoice value. Commission is paid at a percentage of productivity.[13]When the claimant started the following commission scheme was in operation: up to £6,999 of work invoiced attracting no commission, £7,000 to £7,999 at 2.5%, £8,000 to £8,999 at 4%, £9,000 to £9,999 paid at 6%, £10,000 to £10,999 at 7.5%, £11,000 to £11,900 at 9.5% and £12,000 to £12,999 at 11%, up to a maximum of £12,999.[14]Following a staff survey, a decision was made to increase basic salary and to decrease the proportion of commission-based earnings.[15]From 1 March 2025, the remuneration scheme changed. The claimant’s basic salary was increased to £35,000 per annum, and a new commission scheme introduced which meant that no commission was earned on invoices generated of below £9,000, with bandings from £9,000 at 1.83%, from £10,000 at 3.71%, from £11,000 at 6.03% and from £12,000 with a cap at £12,999 paid at 7.79%. This meant that the maximum commission for one month was £1,012.62.[16]The respondent operates a different commission scheme for sales executives. Sales executives receive a lower basic salary and proportionately higher commission based earnings. Under that scheme where annual leave is taken, the thresholds required to achieve the higher bandings are reduced. Specifically for every five days of annual leave taken, the relevant thresholds are reduced by 25%. This is called the “holiday banding adjustment”.[17]The claimant was concerned that the scheme which was operated by the respondent for smart technicians meant that he was financially worse off when he went on annual leave. He raised his concerns on several occasions with his supervisor William Fleming. He was advised to speak to Dominic Evans, general manager of the cosmetic repair department.[18]On 2 August 2025, the claimant contacted Dominic Evans and they agreed that they would discuss the matter the following week. On 5 August 2025, they spoke on the telephone and Dominic Evans advised that he would investigate the matter and the claimant agreed to send a follow-up/reminder email, which he did on 11 August 2025.[19]That e-mail included the following: “I’m not convinced the bonus structure combined with the holiday pay structure work well as every time I am on holiday I am punished. I believe I received the correct average holiday pay, the main issue being when an individual takes time out the business their actual bonus is affected majorly which causes the reduced wages when taking a holiday and causes us to be financially penalised for taking annual leave. Best example is if someone takes 2 weeks off during a 4 week month. They will get their holiday pay which will be half the bonus they would usually earning. For the remaining two weeks there is no way they can invoice over £6K (old bonus structure) and especially now with it being over £8999. This means they will miss half their bonus and be majorly financially worse off by taking holidays. I believe this has cost me somewhere in the region of between £7k£10k (pre-tax) during my time with you despite sharing my concerns with William.”[20]The claimant described this as an informal approach.[21]On 4 September 2025, not having received any reply, the claimant sent an e-mail which he described as a formal “official” request for a review, including two examples and referencing ACAS guidance, government guidance, the Working Time Regulations and case law examples, including Lock v British Gas; Bear Scotland v Fulton and King v Sash Windows. He stated that the resolution which he sought was “a review and adjustment of the bonus/holiday pay scheme going forward, so that annual leave does not reduce my ability to earn the agreed OTE” and payment of back pay.[22]On 10 September 2025, having received no reply or acknowledgement, the claimant sent a further reminder. Dominic Evans forwarded the claimant’s e-mail of 4 September to Katie Drummond in HR on 19 September 2025. She responded, copying in Dominic Evans setting out the “group stance on holiday pay for smart repair technicians” simply confirming the holiday pay policy but not engaging with his concerns.[23]On 19 September 2025 the claimant responded explaining that the policy left him (and his colleagues) worse off when they took annual leave, whereas they should not be financially disadvantaged for doing so. He pointed out that he submitted “a formal complaint” two weeks ago but that the matter had only that day been referred to payroll.[24]On 30 September 2025 Katie Drummond replied by e-mail stating that they were conducting a review of the bonus scheme on 3 October 2025 and he would receive a response by 10 October 2025.[25]On 10 October 2025 Katie Drummond e-mailed the claimant to advise that after a detailed review they had concluded that there was no breach of the Working Time Regulations in the way he had been paid. She explained that during annual leave he was compensated based on an average of the last twelve months’ bonus divided into a daily rate (calculated over a five day work week). She advised that they were however conducting a comprehensive review based on the points the claimant had raised.[26]On 11 October and again on 15 October 2025 the claimant e-mailed to advised that because they had declined to resolve his formal complaint, he understood the internal process to be exhausted, and would escalate the matter through the appropriate external channels.[27]On 11 December 2025, the HR director issued an e-mail to general managers of each dealership which confirmed that the calculation of average holiday pay excluded bank holidays, on the basis that employees were entitled to 25 days on start and 8 bank holidays, with UK law requiring that average holiday pay is paid for qualifying employees for 20 days each year only, but the group policy was to pay average holiday pay for 25 days.[28]The claimant took all of his holiday entitlement each year, but would take care in planning the timing of his holidays because of the potential reduction of bonus at that time, and this could mean that he would not take holidays when he wanted to. Key statutory provisions Relevant provisions on holiday pay[29]Regulation 13 of the Working Time Regulations states as follows: “(A1) This regulation applies to—(a) a worker in respect of any leave years beginning before 1st April 2024, and(b) a worker to whom regulation 15B does not apply in respect of any leave years beginning on or after 1st April 2024. (1) Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year. (2)… (3) A worker’s leave year, for the purposes of this regulation, begins— (a) on such date during the calendar year as may be provided for in a relevant agreement.”[30]Regulation 16 sets out the formula for calculating holiday pay, as follows: “(1) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulations 13, 13A…at the rate of a week’s pay in respect of each week of leave. (2) Sections 221 to 224 of [ERA] shall apply for the purpose of determining the amount of a week’s pay for the purposes of this regulation, subject to the modifications set out in paragraph (3), the supplementary provisions in paragraphs (3ZA) to (3ZG) and the exception in paragraph (3A)]. (3) The provisions referred to in paragraph (2) shall apply— …(c) as if the calculation date were the first day of the period of leave in question; … (da) as if, in the case of entitlement under regulations 13 and 15B, sections 223(3) and 234 did not apply; (e) subject to the exception in sub-paragraph (f)(ii), as if in sections 221(3), 222(3) and (4), 223(2) and 224(2) and (3) references to twelve were references to—(i) in the case of a worker who on the calculation date has been employed by their employer for less than 52 complete weeks, the number of complete weeks for which the worker has been employed, or(ii) in any other case, 52; and…. (3ZA) In the case of entitlement under regulations 13 and 15B the following types of payments are to be included when determining the amount of a week’s pay for the purposes of this regulation— (a) payments, including commission payments, which are intrinsically linked to the performance of tasks which a worker is obliged to carry out under the terms of their contract; (b) payments for professional or personal status relating to length of service, seniority or professional qualifications; (c) other payments, such as overtime payments, which have been regularly paid to a worker in the 52 weeks preceding the calculation date. (3ZB) To the extent that the types of payment mentioned in paragraph (3ZA) would not otherwise be accounted for in a calculation of a week’s pay under sections 221 to 224 of [ERA] (as those sections apply for the purposes of this regulation), those types of payment are to be included by calculating the average weekly amount of those payments payable in the relevant period and adding it to the amount of a week’s pay arrived at under those sections…. (3ZD) In the case of a worker who on the calculation date has been employed by their employer for 52 or more complete weeks, the “relevant period” is the period of 52 weeks ending— (a)where the calculation date is the last day of a week, with that week, and (b)otherwise, with the last complete week before the calculation date. (3ZE) In calculating the average weekly amount of payments for the purposes of paragraph (3ZB), no account is to be taken of any weeks during the relevant period in which— (a)no remuneration was payable to the worker; or (b)a worker was, for any amount of time, on sick leave or statutory leave. (3ZF) If, in a case falling within paragraph (3ZD), any weeks are discounted under paragraph (3ZE), earlier weeks shall be taken into account so as to bring the number of weeks to 52 (or as close to 52 as possible). (3ZG) For the purposes of paragraph (3ZF) no account is to be taken of remuneration in weeks preceding the period of 104 weeks ending— (a) where the calculation date is the last day of a week, with that week, and (b) otherwise, with the last complete week before the calculation date.] …. (3B) For the purposes of paragraphs (3) [F10, (3ZA) to (3ZG)] and (3A) “week” means, in relation to a worker whose remuneration is calculated weekly by a week ending with a day other than Saturday, a week ending with that other day and, in relation to any other worker, a week ending with Saturday…” Relevant provisions on European law[31]The European Union (Withdrawal) Act 2018 (“EUWA”) provides that EU law is no longer the law of the UK, unless it is specifically retained.[32]One of the retentions is set out in s.2 EUWA: “(1) EU-derived domestic legislation as it has effect in domestic law immediately before IP completion day, continues to have effect in domestic law on and after IP completion day…. (2) This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation) and section 5A (savings and incorporation: supplementary).”[33]This provision is subject to sections 5 & 5A and schedule 1 EUWA.[34]Section 5 provides (so far as is relevant): “(A1) The principle of the supremacy of EU law is not part of domestic law. This applies after the end of 2023, in relation to any enactment or rule of law (whenever passed or made). (A2) Any provision of assimilated direct legislation—(a) must, so far as possible, be read and given effect in a way which is compatible with all domestic enactments, and(b) is subject to all domestic enactments, so far as it is incompatible with them. (A3) Subsection (A2) is subject to— (a) sections 183A and 186 of the Data Protection Act 2018 (protection of prohibitions, restrictions and data subject’s rights) (and see also section 183B(3) of that Act)]; (b) regulations under section 7(1) of the Retained EU Law (Revocation and Reform) Act 2023.] (A4) No general principle of EU law is part of domestic law after the end of 2023…. (4) The Charter of Fundamental Rights is not part of domestic law on or after IP completion day.”[35]Section 6 of EUWA dealing with assimilated EU law states (so far as is relevant): “(2) Subject to this and subsections (3) to (6), a court or tribunal may have regard to anything done on or after IP completion day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal. (3) Any question as to the validity, meaning or effect of any assimilated law is to be decided, so far as that law is unmodified on or after IP completion day and so far as they are relevant to it—(a) in accordance with any assimilated case law, and (b)having regard (among other things) to the limits, immediately before IP completion day of EU competences. (6) Subsection (3) does not prevent the validity, meaning or effect of any assimilated law which has been modified on or after IP completion day from being decided as provided for in that subsection if doing so is consistent with the intention of the modifications. (7)In this Act— “assimilated case law” means— (a) assimilated domestic case law, and(b) assimilated EU case law; “assimilated domestic case law” means any principles laid down by, and any decisions of, a court or tribunal in the United Kingdom, as they have effect immediately before IP completion day and so far as they— (a) relate to anything to which section 2 or 3 applies, and (b) are not excluded by section 5 or Schedule 1, (as those principles and decisions are modified by or under this Act or by other domestic law from time to time).” Discussion about the relevant law Holiday pay[36]The law relating to holiday pay is contained in the Working Time Regulations 1998. Regulation 13 provides that a worker is entitled to four weeks’ annual leave in each leave year. That entitlement is derived from rights under European law. Regulation 13A provides that a worker is entitled to an additional 1.6 weeks’ leave (that is 28 days in total).[37]Regulation 16 sets out how holiday pay should be calculated. It states that “a worker is entitled to be paid in respect of any period of annual leave to which he is entitled at the rate of a week’s pay in respect of each week of leave” in accordance with a formula set out there.[38]Regulations 16(2) states that a week’s pay is to be calculated in accordance with the provisions of section 221 to 224 ERA subject to certain modifications. The reference to 12 weeks reference period there is now to be read as a reference period of 52 weeks.[39]Further regulation 3ZA (inserted by the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023) (the 2023 Regulations) provides that certain types of payments are to be included when determining a week’s pay including commission payments, which are intrinsically linked to the worker’s performance.[40]Regulation 30(1)(b) states that a worker may present a complaint to an employment tribunal where his employer has failed to pay him the whole or any part of any amount due to him in respect of statutory annual leave under reg.16. If the Tribunal finds that a complaint under reg.30(1)(b) is well founded, the Tribunal must order the employer to pay the worker the amount which it finds is due (reg.30(5)). Under reg.30(2)(b) a complaint must be lodged within three months of the date on which it is alleged payment should have been made (with extensions permitted where not reasonably practicable).[41]There is no provision in reg.30 for linking a series of non-payments or under-payments. However, if there is a series of underpayments, claimants can bring claims for unpaid holiday pay under s.13 ERA which prohibits unauthorised deductions from wages. Here the three month time limit in s.23(2) ERA runs from the date of the last deduction (s. 23(3)) (with extensions where that was not reasonably practicable s.23(4)).While the EAT in Bear Scotland Ltd v Fulton 2015 ICR 221 held that a gap of more than three months between any two deductions in the chain would break the series of deductions, that decision was overruled by the Supreme Court in Chief Constable of the Police Service of Northern Ireland v Agnew 2023 UKSC 23, finding that what amounts to a series of deductions was essentially a question of fact.[42]There is a two year limit on the backdating of unlawful deduction from wages claims which means that a worker can only claim in respect of a series of deductions going back two years from the date a claim was lodged (Deduction from Wages (Limitation) Regulations 2014/3322). Relevance of EU case-law pre and post Brexit[43]The provisions of the Working Time Regulations were intended to implement the requirements of the European Working Time Directive, which obliged member states to pay workers four weeks annual leave calculated by reference to the worker’s “normal remuneration”.[44]However, as noted above, the Working Time Regulations require holiday pay to be calculated by reference to the provisions of the ERA ss.221-224 on how to calculate a week’s pay. That calculation did not necessarily take into account additions to basic pay such as overtime, commission and bonus, specifically where a worker had normal working hours (as in this case). This was found not to comply with the requirements of European law, which explains why these provisions were amended by the 2023 Regulations.[45]Relevant decisions of the ECJ on the calculation of “normal remuneration” include Lock v British Gas Trading Ltd 2014 ICR 813 where the ECJ confirmed that the purpose of holiday pay was to put the worker in a similar financial position as when they were at work. In that case, where the claimant was unable to generate any commission during his holiday, he suffered a deferred financial disadvantage, particularly where commission represented the majority of his pay and his future commission payments were adversely affected. The fact that this reduction occurred some time after he had taken the leave was irrelevant, because what mattered was the worker could be deterred from taking annual leave in such circumstances. Where the commission was directly linked to his work, it had to be taken into account when calculating how much he was entitled to when he took annual leave. It was for the national court, taking account of the European case law, to assess the method of calculating holiday pay and the relevant reference period, ensuring that the provisions met the objectives of European law.[46]When this decision was returned to the employment tribunal with directions from the ECJ, the employment tribunal had to decide whether the unamended version of the WTR could be interpreted so as to give effect to EU law. The decision of the employment tribunal was that it was not only permissible but necessary to interpret the WTR so as to include commission payments in the calculation of holiday pay for reg.13 leave. That decision was upheld by the EAT, and on further appeal, the Court of Appeal concluded that holiday pay must be calculated by reference to the workers’ normal renumeration, including commission. The Court of Appeal concluded that it was possible to interpret the WTR consistently with the relevant European law, that is the court could and should interpret the WTR to include the claimant’s commission payments in the calculation, with the court favouring a form of wording that more closely confined the tribunals’ judgment to the circumstances of the claimant’s case. The Government has however now amended WTR through reg.16(3ZA)(a) WTR, meaning that this interpretative exercise should no longer be necessary.[47]Following the UK’s withdrawal from the EU, effected by the European Union (Withdrawal) Act 2018 (EUWA) and the subsequent implementation of the Retained EU (Revocation and Reform Act 2023 (REULA), which came into force on 1 January 2024, UK domestic law continued to contain all the employment rights derived directly and indirectly from EU law.[48]However, REULA repealed s.4 of the EUWA which had preserved directly effective rights, removing from domestic law the effects of the general principles of EU law from the end of 2023. It repealed the provisions of s.5 which had retained the principle of the supremacy of European law, inserting new provisions at s.5(A1)-(A3) EUWA creating a new rule of priority under which domestic primary or secondary legislation is to take priority over retained direct EU legislation in the event of conflict. REULA also removes the general principles of EU law from domestic law, repealing the requirement in EUWA to decide any question on the validity, meaning or effect of retained EU law in accordance with the general principles of EU law. Accordingly, a UK court of tribunal can no longer to decide a point relying on EU law principles such as equivalence and effectiveness.[49]S6(3) now provides that any questions as to the validity, meaning or effect of any assimilated law (including WTR) must be decided in accordance with any assimilated case law and having regard to the limits immediately before implementation period completion day (IP day, that is 31 December 2020) of EU competences, which by s.6(6) does not prevent the validity, meaning or effect of any assimilated law which has been modified on or after IP completion day from being decided in accordance with European principles if doing so is consistent with the intentions of the modifications.[50]Thus the lower courts and tribunals (such as the employment tribunal) have to continue to follow ECJ decisions that applied before IP day when interpreting assimilated law until there is legislation modifying assimilated EU law, and a purposive interpretation can be adopted even after modification of assimilated EU law so long as it is consistent with the intention of the modifications.[51]With regard to the specific relevance of European law to the interpretation of provisions relating to holiday pay, since the supremacy of EU law ceased to have effect after 2023, there is thus no longer any obligation on this Tribunal to interpret the WTR in conformity with the WT Directive in regard to rights and obligations relied on after 31 December 2023. Assimilated case law may still be used as an aid to interpretation but the wording of domestic legislation now takes precedence over any conflicting or domestic assimilated law.[52]The provisions of REULA meant that certain rights to paid annual leave which had relied on a purposive interpretation could fall away, so in order to codify and preserve those rights, the Government used powers under REULA to make the 2023 Amendment Regulations. This included preserving workers entitlement to “normal remuneration” for four weeks leave (European derived leave) (through regulation 16 (3ZA)) but leaving additional leave under reg.13A unaffected (domestic leave).[53]Further, reg.16(3ZA)(a) provides that commission payments intrinsically linked must be included when determining the amount of a week’s pay.[54]The relevant domestic provisions relating to holiday pay have thus been modified. However, a purposive interpretation can still be adopted even after modification so long as that interpretation is consistent with the intention of the modifications. The employment tribunal cannot however rely on the supremacy of EU law or on principles of EU law for an effective remedy etc. The claimant’s claims and submissions[55]There was in fact no dispute about the background facts in this case. This case turns solely on the application of the applicable law to these facts. There was however a dispute about what the applicable law was, and how that should apply to the facts.[56]The claimant’s claims relate to the payment of holiday pay. The claimant referred in evidence to concerns about how his holiday pay was calculated. In particular, the claimant made reference in his witness statement to a discrepancy in the calculation of the daily average used to calculate his holiday pay, with the daily rate varying significantly between April and June 2025, with the level of variation not being consistent with a stable, averaging method.[57]However, as I understood it, the claimant makes no claim in respect of any miscalculation which he suggests is apparent from the daily rates identified by the respondents in their calculations for this hearing.[58]So while Mr Jackson had understood that the claimant intended to pursue two claims, including a failure to pay for period of leave in accordance with reg.16 of the Working Time Regulations 1998 (“WTR”), the claimant confirmed that he pursues claims only for unauthorised deduction from wages contrary to section 13 of the Employment Rights Act 1996 (“ERA”).[59]The claimant, relying on his statutory rights under the Working Time Regulations, argues that he has suffered an unlawful deduction from his wages amounting to £4,765.83 for the period from September 2023 to September 2025. This included interest at 8%.[60]In broad terms, I understood the claimant’s complaint to relate to the way that commission is taken into account to calculate his holiday pay. In particular, he argues that the respondent’s averaging method leaves him worse off when taking holidays resulting in him having to plan his holidays carefully because of the subsequent reduced pay which results from him being unable to make bonus targets due to working less days in the month.[61]In particular, in months when he takes holidays, he has less opportunity to earn commission and therefore to reach the thresholds set for the earning of commission. This is particularly apparent when he takes two weeks’ leave. It seemed to me that the clearest example would be where he failed, due to lack of opportunity because he was on holiday, to reach the minimum threshold of £9,000 invoices, in which case he would get no commission at all for that month. If he takes fewer days holidays in any month, he may not reach the higher bandings so would earn less commission. Calculating his pay over the course of a year means that the rate of holiday pay (per day or per week) is lower than it would have been if he had been able to earn commission in those months.[62]The claimant has calculated the sums he says that he is due by using a formula to calculate a daily rate, but, as he confirmed during the course of the hearing, that is calculated after a year of earnings. In contrast, the respondent calculates holiday pay using the average of the 12 months’ pay in the preceding month when the leave was taken.[63]The claimant considers this results in an overall reduction of earnings and this shortfall to be an unfair disincentive to take annual leave (and he gave evidence about adjusting the timing of his leave so that he did not lose too much pay). He argues that this is an unlawful deduction from wages under reg.13, relying on a series of deductions from when he commenced employment in September 2023.[64]The claimant states in his witness statement, “My position is that employees should not be financially disadvantaged for exercising their right to take statutory leave, and that the respondent’s current arrangements fail to achieve this in practice. I also believe that this practice would prevent the respondents’ advertised OTE being unachievable.” He states in submissions that this defeats the purpose of the statutory leave and the system results in him taking leave when it is least financially disadvantageous, which means for example that he misses out on important family occasions.[65]He also stated during the hearing that this method of calculation is only one way to address the problem, but he seeks payment based on the method he proposes. Although he appears to accept that the respondent calculates holiday pay in line with the WTR (to include commission paid), he says that when the holiday pay policy interacts with the bonus structure that causes a shortfall.[66]It is apparent that the claimant is relying on statements from ACAS and the Government’s websites, as well as the Working Time Directive as interpreted in judgments of the European Court of Justice.[67]The claimant also argued that the claim was not time barred; that although there were occasions (by his calculations) when there was no deduction, he relied on the Agnew case and the fact that there was a series of deductions.[68]While the claimant’s claims were not perhaps as clearly set out as they might have been, given the claimant is a party litigant, we were thus able to clarify the scope of the claims during the hearing.[69]The issues for determination by this tribunal were therefore: a) Whether the calculation of annual leave complies with the requirements of the Working Time Regulations read with the decisions of the European Court; b) If not, whether the claimant has suffered an unlawful deduction from wages; c) Whether his claim or aspects of it were time barred; d) Whether his claim or aspects of it were subject to the two year limitation period; and e) whether there should be an uplift for the failure of the respondent to follow the Acas code of practice in regard to the grievance procedure implemented. The respondent’s submissions summarised[70]Mr Jackson argued that there was a fundamental problem with the claimant’s approach, which was that the assumed error in calculation has not been explored by the claimant and he is not able to establish what the error is; and there is no statutory basis for a claim based on a moral right to increased pay.[71]He set out the relevant law, acknowledging that for holiday years starting on or after 1 April 2024, the case law on holiday pay has mostly been codified into amendments of the WTR, but submitting that there is no change in calculation between the pre-and post-April 2024 amendments.[72]He submits that as the claimant has normal working hours reg.13 is the appropriate starting point, with the holiday pay calculation set out in reg.16 (as amended) which includes a formula for calculating annual leave based on a week’s pay using a reference period of 52 weeks to include commission payments.[73]Mr Jackson argued that because the claimant’s basic pay does not depend on the number of hours he works there is no need to calculate any kind of hourly rate and calculations can be done based purely on earnings and weeks worked; that accordingly the fact that the claimant might work additional days/hours in any given week or receive a bonus is irrelevant to the methodology used to calculate his pay, but it may mean that the pay for any given “week” used to calculate the average might be higher.[74]He submits that the statutory methodology, intended to replicate the pre-Brexit ECJ case law, is simply to add up the total pay for each of the complete 52 weeks immediately preceding any given period of annual leave, divide that number by 52 and remunerate the claimant for each day of annual leave at 20% of a week’s pay. This applies only to the 20 days under reg.13 and the WTR provisions strictly speaking only apply up to 28 days (the claimant being contractually entitled to more than this).[75]After setting out the relevant legislation in regard to the place of EU law post-Brexit, he submitted that the legal position in EUWA for Mr Jones’s holiday pay claim was that:a. the WTR is still preserved as domestic law after 31st December 2020;b. there is no longer a principle of supremacy of EU law, including the right to an effective remedy;c. however the rights under WTR should still be interpreted in accordance with EU case law where WTR is not modified after 31 December 2020; but,d. if WTR was modified after 31 December 2020, then it can still be interpreted in accordance with EU case law, if doing so is consistent with any amendments made to WTR.[76]Given that WTR was modified after 31 December 2020 by the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, Mr Jackson considered the purpose behind the amendment to ascertain whether any “old” interpretation would be kept by the courts.[77]In ascertaining the purpose behind the amendment, he relied on the Explanatory Note to the 2023 Regulations which states that “Regulation 16 of the 1998 Regulations is also amended to include express provision about the calculation of holiday pay in relation to annual leave taken under regulation 13, which is often referred to as “normal pay”. These new express provisions restate certain employment rights to ensure those rights continue once the interpretive effects of EU law on the United Kingdom’s statute book have been removed at the end of 2023.”[78]He also relied on relevant provisions of the Explanatory Memorandum which states that the Department of Business and Trade had identified three areas of employment law that would benefit from reform, because they were either too onerous on business to be used effectively or too complex for workers to know, understand and use. One of the areas for reform was simplifying annual leave and holiday pay calculations under the WTR including introducing an accrual method for calculating holiday entitlement for certain workers.[79]Mr Jackson relied on the following extracts: “The aim of the various changes is stated to be to minimise unnecessary bureaucracy for businesses (and so make compliance easier) without reducing workers' overall level of entitlement and protection…EU case law provides that the regulation 13 leave should be paid at the worker’s “normal remuneration”, but it does not definitively define normal remuneration though it is generally understood to include certain types of bonuses and commission. The 2023 Act removes EU interpretive effects, creating a risk that the case law defining what should be included in “normal remuneration” would fall away…. While the two distinct pots of annual leave with the two minimum rates of pay are maintained, the WTR is amended by incorporating into regulation 16 certain principles from retained EU case law to specify the types of payments employers must include when calculating a week’s holiday pay. The aim is, as far as possible, to ensure that workers’ enjoyment of the right to paid annual leave is maintained. …”.[80]Mr Jackson submitted that by reference to s.6(3) EUWA, the purpose of the 2023 regulations for holiday pay was: a) simplification ie moving away from very widely defined interpretations based on a number of different cases that must each be interpreted against one another; and, moving towards a single, exhaustive, definition of what is included and what is excluded from holiday pay; and b) retention: i.e. making sure that the essence of the EU derived rights are maintained.[81]He argued that:a. it is no longer possible to argue as a general principle that there must be an effective remedy for the right to annual leave, beyond that remedy provided for in WTR and ERA;b. the definition of what is a bonus, or commission, or whether it is regularly paid will likely be construed widely to avoid employers winnowing away the right to be paid for periods of leave by attempting to define what is in reality a bonus or commission as something else; but,c. attempting to argue that a bonus that is not actually paid (or payable), or some other perceived shortfall, should be included in a holiday pay calculation is disallowed as it is not in keeping with the purpose of the 2023 regulations to give greater certainty about what is included as holiday pay.[82]He argued further that none of the provisions of EUWA provide a basis to depart from the clear words of regulation 16 WTR. Accordingly, it is only those payments under an incentive scheme that are actually due to a worker which will be required to be included within the 52 week calculation period for averaging a week’s pay. As a result, he argued, there is no basis for Mr Jones’s argument that he feels that following WTR is a disincentive to his taking holiday. He is arguing, in effect, for entitlement over and above the amounts in the WTR in saying that there should be some form of uprating for incentive scheme payments that he might have earned while he was on annual leave, but that he did not in fact earn. The purpose of including an average of bonuses and commission in holiday pay was to ensure that pay that might have accrued while on leave was not “lost” by only requiring basic pay. The inclusion of payment under an incentive scheme is already an uprating and doing the same thing again as Mr Jones suggests, could properly be characterised as a windfall rather than an anti-deterrence measure.[83]In summary, Mr Jackson’s arguments is that the amendments introduced into the WTR provide an exhaustive methodology by which a person’s entitlement to holiday pay is to be calculated and are consistent with earlier case law; the claimant accepts that the respondent follows that methodology when calculating holiday pay; the claimant has identified no other way in which his contractual remuneration is less than it ought to be; and that being true there has been no underpayment and the claim must be dismissed. Tribunal deliberations and decision[84]As I understand it the claimant accepts that his pay is calculated correctly applying the current provisions of the Working Time Regulations, that is as amended by the 2023 Regulations.[85]In particular, the calculation of his holiday pay does include commission payments. The case law on which he generally relies required commission payments to be included (over and above basic pay) when calculating holiday pay because of the requirements of European law. Although at one point this required our courts to interpret the Working Time Regulations in a way which was compatible with that requirement of European law, the Government has since amended the Working Time Regulations to include commission payments using the standard formula but based on the previous 52 weeks (rather than 12 as it once was). So there is now no need to apply the interpretive obligation because the WTR is now clear.[86]The claimant’s argument goes beyond that. As I understand it, his argument requires that I should not accept that the way the Government interpreted the caselaw of the CJEU by making amendments to the WTR is correct because it does not allow for the inclusion of commission which might be earned but for absence due to annual leave.[87]The claimant had calculated what he said he was due using a particular methodology, in particular looking over the course of the year and calculating the amounts of annual leave due retrospectively. This would present a difficulty for an employer who could not know how much holiday pay should be paid until the end of the holiday year.[88]However, the fact that there might be a way of calculating commission for the holidays which was not based on what was actually paid is of course beside the point. The claimant pointed to the way calculations were made for other roles, and in particular the sales executive role, but the respondent’s evidence was that commission payments relative to basic pay was a much higher proportion of their wages.[89]Stating his case in the broadest possible terms, as I understand it, the claimant relies on the argument that, because of the way that commission operates, the system used by the respondent represents a financial disadvantage to him, and means that he is deterred from taking leave at times which might suit him (and his family) better. He said in evidence that he had not in fact been deterred from taking his leave and had taken that to which he was entitled during the period under scrutiny.[90]He relies on decisions of the European Court, such as Lock, where the claimant’s holiday pay was calculated without reference to commission payments at all, and argues that I should apply the principles from that case to uprate his annual leave pay to include not only commission received but also commission that he might have received.[91]As I understood it, Mr Jackson accepted that the interpretive provision could still apply if European law and principles as they stood pre-Brexit had not been properly implemented by the UK government. However, he argued that while the rights under WTR should still be interpreted in accordance with EU case law, where the WTR was modified after 31 December 2020, although it could still be interpreted in accordance with EU case law, that will only be to the extent consistent with any amendments made to WTR. He argued that, looking at the purpose behind the 2023 Regulations (as set out in various government documents explaining the rationale), it was clear that the “old” interpretations would not be kept by the courts. This was because the purpose of the amendment was to simplify the law by moving towards a single, exhaustive, definition of what is included and what is excluded from holiday pay, as well as maintaining the essence of the EU derived rights.[92]It appears therefore that the question for consideration is whether assimilated law would allow for the remedy which he seeks, even if the Government has incorrectly implemented those principles, now that we have left the EU.[93]The difficulty for the claimant would appear to be two-fold. The Government has amended the Working Time Regulations in a way which was intended to comply with the principles laid down in the case law of the CJEU. Further, even if they have done so in a way which could be argued to be incompatible with those principles, the UK’s subsequent withdrawal from the EU has resulted in changes to the law in how account should be taken of European law principles and European caselaw.[94]I take the view that since the terms of the WTR were modified post-Brexit (that is post IP day, being 31 December 2020), I can only rely on the interpretive obligation to the extent consistent with the intention (or purpose which is the word Mr Jackson uses) of the modifications. It is clear from the provisions and from the Government’s explanation for their rationale that the intention was to ensure that the requirements of European law were incorporated with the provisions, but also to simplify the calculation of annual leave pay.[95]It seems to me in any event that, even pre-Brexit, the claimant could not have relied on the case law of the CJEU to provide him with the remedy which he seeks. This is because, as Mr Jackson submitted, it is not a principle of European law that a worker should not be financially disadvantaged as a result of taking leave. Rather the purpose of the Working Time Directive is to avoid measures which might restrict the right to annual leave or the purpose of leave, the entitlement to leave and a payment therefor being two aspects of a single right (and the WTD being a measure to protect the health and safety of workers). However, so far as I am aware there is no decision of the CJEU which he can rely on which states, in terms, that the calculation of holiday pay should include payments for commission which might otherwise have been earned while on holiday.[96]The one thing that might have been possible pre-Brexit if there was a valid question whether that the provisions of the WTR properly implemented the requirements of European law in regard to the inclusion of commission is that there could have been a reference to the CJEU. That of course is no longer possible post-Brexit.[97]I have come to the conclusion that the claimant can no longer rely on the principles of European law in the way that he seeks, and in particular he cannot argue that there must be an effective remedy for the right to annual leave, beyond that remedy provided for in WTR and ERA. The claimant is not entitled to argue in the post-Brexit context that commission not actually paid or payable should be included in the calculation of holiday pay because the purpose of the 2023 Regulations was to give greater certainty about what is included as holiday pay.[98]In any event, as set out above, even if the claimant could have relied on the principles of European law, and even if these views on the purpose of the 2023 Regulations is wrong, it seems to me that the decisions of CJEU that I am aware of would not give him the remedy that he seeks.[99]Accordingly, the claimant’s claim for additional holiday pay is not well-founded and must be dismissed.[100]As I make no award for holiday pay, there was no requirement to consider matters of time limits, whether there was or was not a linked series of deductions, whether or not the Deduction from Wages Limitations Regulations meant that that any award could in any event only go back to November 2023, and whether or not in dealing with the grievance the respondent’s breached the Acas code.