In the Advocate General of the Court of Justice of the European Union's (“CJEU”) recent opinion in Lock v British Gas Trading Limited, it was concluded that where an employee receives a basic salary and variable commission, his / her holiday pay must include not only the basic salary but an amount equivalent to what the employee might have earned by way of commission during the holiday period.

This opinion stemmed from a request for a preliminary ruling from the Employment Tribunal, Leicester, United Kingdom.  The opinion has been deemed to have potentially serious implications relating to the correct calculation of holiday pay in the UK.

However, in Ireland we already have legislation which deals with this. Under the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, if an employee’s pay varies because, for example, of commission or bonus payments, his / her pay for his / her holidays is the average of the pay over the 13 weeks before taking the holidays in question.