Advocate-general’s opinion that holiday pay should include commission — Lock v British Gas Trading Ltd and others

The advocate-general (AG) has issued an opinion that holiday pay of workers whose pay is made up of a fixed element and a regular commission (e.g. sales staff) should comprise both basic pay and an amount that reflects average commission (by reference to commission earned over a previous representative period). This opinion is predicated on the fact that article 7 of the working time directive is intended to enable a worker to actually take their annual leave entitlement and not be worse off as a result. Workers should not be discouraged from taking their leave entitlement for financial reasons.

Mr Lock was a sales consultant for British Gas who was paid a basic salary plus commission for sales made in the previous period. His commission equated to around 60 per cent of his total income. He was unable to make sales (and therefore generate commission) during his holiday and he therefore suffered a reduced income in the period following his return to work. He brought a tribunal claim for unpaid holiday pay, which was stayed pending a referral to the European Court of Justice (ECJ) to consider the question of whether holiday pay should include commission…

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