Following a reference from the Leicester Employment Tribunal, the Advocate General recently provided his opinion on the calculation of holiday pay. 

His view was that commission earned by the employee, Mr Lock, in his role as a salesman was intrinsically linked to his role and therefore Mr Lock’s holiday pay should include not only his basic salary but also a sum equivalent to the commission he would have earned whilst ordinarily at work.  The Advocate General suggested using a 12 month representative period to complete the calculation.

The Advocate General’s opinion is not binding on the Court of Justice of the European Union (the CJEU).  However, if the opinion is followed when the case is heard later this year, this could give rise to a fundamental change in the calculation of holiday pay where remuneration regularly includes additional elements or allowances.