It has been confirmed that the case of Lock v British Gas, which concerns the calculation of commission as a part of statutory holiday pay, was recently heard by an employment tribunal, following an ECJ ruling. Lock brought a claim for outstanding holiday pay on the basis that it did not reflect what he would have earned from commission. The employment tribunal was unable to decide if the Working Time Directive requires pay while on annual leave to include the commission payments that a salesperson would have earned, had the salesperson not taken the leave and so referred the issue to the ECJ. The ECJ ruled that as Lock’s commission was directly linked to the work he carried out, it must be taken into account when calculating holiday pay, but left it to the tribunal to decide how the decision should be applied to the calculation of holiday pay in general, and Lock’s case in particular. The decision is awaited.

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