The European Court of Justice has now upheld the Opinion of the Advocate General that holiday pay should include commission.

Earlier this year we summarised that Opinion in the case of Lock v British Gas Trading Ltd. Briefly, some 60% of Mr Lock's total earnings were commission but British Gas refused to include this in his holiday pay stating that he was not generating commission when on holiday.

The European Court of Justice has confirmed that this defence is not valid. Indeed, in countless occupations the employee is not earning when on holiday and such an argument undermines the very basis of holiday pay. It must be remembered that the Working Time Directive is based on health and safety. Workers should not be deterred from taking rest breaks. If Mr Lock knew that any period of holiday would lead to significant financial detriment, he would be less likely to take holiday.

The case follows on from the European Court of Justice's ruling in British Airways v Williams which stated that holiday pay should include all payments which are intrinsically linked to the tasks carried out by the employee.