Should commission be included in a salesman’s holiday pay?

British Gas employed Mr Lock as a salesman. Mr Lock’s monthly pay consisted of his basic pay and a variable sales commission (SC). Mr Lock only received his basic pay for a period during which he had taken holidays - since he would not have earned a SC during the period.

Mr Lock argued that his holiday pay should include an average SC. The Advocate General (AG) agreed. The AG said that the SC was intrinsically linked to the performance of the salesman’s job duties [see paras. 31 – 34]. The AG added that Mr Lock’s average SC over the last 12 months appeared to be an appropriate amount that should be included in his holiday pay [see para. 48].

The decision of the ECJ is awaited. The ECJ usually agrees with the opinion of the AG.

Lock v British Gas (C-539/12)