The Advocate General has given his opinion in another holiday pay case on course for the ECJ. In this case the Claimant, Mr Lock, was paid a basic salary and a commission element which varied. Whilst he was on holiday he was paid his basic salary and only the commission that fell due whilst he was on holiday.
The AG considered that following the famous case of Williams and others v British Airways plc, the holiday pay of workers who are on variable income should compromise of both basic salary and an amount that reflects their commission or other variable element previously earned over a representative period. Remuneration during the leave period under the Working Time Directive should be equal to remuneration during other comparable periods of work, otherwise the worker may not take their annual leave entitlement.
He said that it was for the national courts to determine how the variable element of holiday pay should be paid but he suggested taking the average amount received by the worker over 12 months as a representative period may be appropriate. As always the AG opinion does not bind the ECJ so a decision is awaited to clarify the position.