In a case before the European Court Of Justice (ECJ), Lock v British Gas Trading & Others, the Advocate-General has given an opinion that commission should be included in statutory holiday pay.
The opinion of the Advocate-General is only guidance for the ECJ and is not binding, and the full decision of the ECJ will be given in due course.
The opinion stresses the importance placed on holiday for an employee or worker "to rest and enjoy a period of relaxation and leisure" and that holiday pay should not be adversely affected to prevent an employee from taking their holiday.
If the ECJ does follow the Advocate-General's opinion, this could add a significant cost for employers, particularly where commission forms a significant part of an employee's income, and employers should consider looking at their current commission structures.
There may also be significant claims for back pay in relation to holday pay that should have included commission if the ECJ follows the Advocate-General's opinion.
06 December 2013
