Pay whilst on holiday should include an amount to reflect commission that would have been earned, if the employee had not taken holiday leave. The key principle is that employees should not be worse off because they have taken holiday. If they are, the risk is that employees will not take holiday leave at all, which would be contrary to the intention of the working time directive.
It is still questionable as to how the commission element in respect of a period of holiday should be calculated. The Advocate General's view was that taking an average amount received by the employee over a representative period of the previous 12 months, would be appropriate. However, this is for national courts to determine. The upshot of the decision is that a number of businesses may now face a liability for retrospective un paid holiday pay.
Sarah Rushton (firstname.lastname@example.org)
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