Following the European Court of Justice’s decision last year in the case of Lock v British Gas, judgment has now been given by the employment tribunal in Leicester.

You will recall that the case was about Mr Lock was a salesman on a basic salary with variable commission paid in arrears.  He could not earn commission whilst on leave and thus lost income by taking holiday.

The employment tribunal held that his holiday pay should include his commission. The Tribunal inserted new words into regulation 16(3) of the Working Time Regulations 1998 to give effect to the ECJ decision.  Regulation 16(3)(e) now reads “as if, in the case of the entitlement under regulation 13, a worker with normal working hours whose remuneration includes commission or similar payment shall be deemed to have remuneration which varies with the amount of work done for the purpose of section 221.”

This means those who earn commission are entitled to this as part of the holiday pay calculation but back-dated pay claims are subject to the two year cap which takes effect on 1 July 2015.