It has just been announced that the European Court of Justice's decision on this question, in the case of Lock v British Gas Trading Limited and others, will be available on 22 May 2014.
This decision is important as it will provide a clear authority for Employment Tribunals to follow on this important question of whether average commission payments need to be taken into account when calculating holiday pay under the Working Time Directive. Mr. Lock has argued that it ought to be taken into account.
The Advocate General agreed when he delivered his opinion in December 2013 on this matter. This opinion (which is not binding) suggested that holiday pay should include an amount that reflects average commission earned over a certain period. This was because commission payments were said to be intrinsically linked to the work done. It was also relevant that employees may be deterred from taking annual leave if their holiday pay did not take account of commission payments.
It is for the European Court to decide whether or not to follow this opinion, but it is common for the Court to follow it. We will report on the outcome when it is available later this week as the case has broad repercussions for many employers.Should Holiday Pay Calculations Include Average Commission Payments?