ECJ Confirms That Holiday Pay Must Include Commission

In Lock v British Gas Trading Ltd, the ECJ has confirmed that holiday pay must include a payment in respect of contractual sales-based commission, rather than being based on basic salary only, under the Working Time Directive (WTD).

The case was heard at first instance by Leicester employment tribunal, which recognised that under the natural wording of the Working Time Regulations 1998 (WTR) and the week's pay provisions of the Employment Rights Act 1996 (ERA), the Claimant was not entitled to a sum in respect of commission in his holiday pay. This position had been confirmed by the Court of Appeal in Evans v Malley Organisation Ltd t/a First Business Support. However, the Tribunal recognised a conflict with the decision in Williams v British Airways plc, in which the ECJ had held that the WTD requires that workers receive their "normal remuneration", which includes any payments "intrinsically linked" to the performance of the worker's tasks, during holiday. The