ECJ confirms that commission must 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 ECJ agreed. The ECJ added that a national court should determine the method of calculating the average SC. (The Advocate General said 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.)

Lock v British Gas (C-539/12)

Checking a person's right to work in the UK

From 16 May 2014, the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014 will change an employer’s duties in relation to checking a person’s right to work in the UK. The key changes are:

• An employer must keep a record of the date on which it checked a person’s right to work in the UK.
• An employer will no longer be required to copy the front cover of a passport.
• An employer must keep a whole copy of a travel document (except a passport) in a format which cannot be subsequently altered.
• An employer will no longer be required to carry out a “follow up” check - at least once every 12 months - in relation to an employee who has a temporary right to work in the UK. However, an employer must still check the employee’s right to work in the UK when their temporary right has expired.
• Where an employer is reasonably satisfied that the employee has an outstanding application or appeal - in relation to extending their temporary right to work in the UK - the temporary right will be extended by:
• 28 days or
• if earlier, the date on which the Secretary of State informs the employer in writing that the employee no longer has the right to work in the UK.
• An employer must obtain and keep details of the term and vocation dates of a course – if the employee or prospective employee is a student - who has permission to work for a limited number of hours per week during term time.
• The maximum penalty for employing an illegal worker will rise from £10,000 to £20,000 per worker: Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2014.
• An employer who acquires new employees due to a TUPE transfer - will have a grace period of 60 days from the date of the transfer - to check their right to work in the UK: Code of Practice on preventing illegal working (May 2014). The grace period was 28 days before 16 May 2014.

The Home Office has updated its Codes of Practice and guides to reflect the changes to an employer’s duties in relation to checking a person’s right to work in the UK.