Should holiday pay calculation include sales-related commission in addition to basic pay?
Yes, was the view of the European Court of Justice (ECJ) in Lock v British Gas Trading Ltd last week. This decision is consistent with the earlier opinion of the advocate-general in the same case that was given on 5 December 2013. Employees should not be deterred from taking annual leave and they might be if their income would be lower because of a period of annual leave taken when they would be unable to generate commission, albeit that the actual reduction in earnings would not occur until after the annual leave.
The case concerned an individual, Mr Lock, who received a basic salary but earned commission on top, which was variable depending on sales achieved and not on time worked. The commission element made up, on average, 60 per cent of his monthly earnings. As he could not earn commission while on leave, his income would be lower if he took leave. Having issued his claim for holiday pay, the employment tribunal referred it to the ECJ, specifically to question whether the holiday pay should include commission payments that the worker would have earned had they not taken the leave, and, if so, how that commission element of holiday pay should be calculated.
In its press release (No.76/ 14), the ECJ points out that, during annual leave, a worker must receive his normal remuneration and that the purpose of holiday pay is to ensure that periods of rest are comparable in salary to periods of work. The ECJ rejected the argument of British Gas that Mr Lock received his salary and commission earned from previous weeks’ work during his annual leave. The main basis for the decision appears to be that a worker may be deterred from exercising their right to annual leave. This would be contrary to the objective of the Working Time Directive…
Click on the link below to read the rest of the Goodman Derrick briefing.
News from Goodman Derrick
Briefings from Goodman Derrick
Are post-termination restrictions on a recruitment consultant enforceable where information is widely available on social media?
The High Court has held that six-month non-dealing and non-solicitation post-termination restrictions were enforceable by the recruitment business against a former employee.
No, according to the EAT, in the case of a group of agency workers who were assigned to one hirer for periods ranging from between six and 25 years.
Analysis from The Lawyer
Active financial management is vital, but with firms looking more closely at the process of debt and fee collection, the personal touch still counts
The lure of the law can kick in at any stage of life. We speak to four individuals who have made a radical switch to a legal career