Lock v British Gas Trading Ltd and Others  CJEU Case C-539/12 Ad
Working Time Regulations; Holiday Pay; Commission
Should commission be included in holiday pay calculations? Yes, in the opinion of AG Bot, where the commission is a consequence of the worker’s own work.
Mr Lock earned a fluctuating amount of monthly commission that made up over 60% of earnings. However, whenever he was on holiday he didn't earn commission, so his earnings would always be lower in the month that followed a period of annual leave.
The AG noted that, "according to settled case-law, the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of European Union social law from which there can be no derogation."
Advocate General Bot concluded:
"In a situation such as that at issue in the main proceedings, in which the remuneration received by a worker comprises, on the one hand, basic pay and, on the other, commission the amount of which is paid by reference to sales made and contracts entered into by the employer in consequence of the worker’s own work, Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time requires such commission to be included in the basis for calculating the remuneration that is payable to that worker in respect of his period of paid annual leave.
It is for the referring tribunal to determine what method and rules are appropriate for attaining the objective laid down in Article 7 of Directive 2003/88."
The case will proceed to a full CJEU hearing in due course.