Skip to main content

News story

May 12, 2017

Calculating holiday pay – change on the horizon?

In the UK, many employers calculate holiday pay based on basic salary alone – even if an employee usually receives commission. However, a landmark court case seems set to change this.

Last year the Court of Appeal in British Gas v Lock held that employers must consider commission payments when calculating holiday pay under the Working Time Directive (WTD). However, the Court remained silent on whether the same rule would apply in other cases, for example, where employees receive a single, results-based commission or annual bonus.

Summary of the case

Mr Lock was a sales consultant for British Gas, and was paid a commission which greatly exceeded his basic salary. While on holiday, he was paid at the rate of his basic salary – and claimed this was an unauthorised deduction from his wages. An Employment Tribunal and the Employment Appeal Tribunal (EAT) agreed with him, finding that under the WTD, ‘normal remuneration’ included his commission and should be included in his holiday pay.

How could the ruling affect UK employers?

The ruling sets a precedent for commission to be included in holiday pay if it is intrinsically linked to the performance of tasks in an employee or worker’s employment contract.

While the calculation is left up to national courts to determine under national law, it must be based on the average commission earned “over a reference period which is considered to be representative”. When writing this article, the Tribunal had not considered the appropriate reference period to be applied to calculate Mr Lock’s commission. Although, it was likely to be based on average earnings over the 12-week period before holiday is taken.

In light of Lock and other recent case law, employers are advised to review their holiday pay calculations to ensure they comply with the changes. As it’s unclear how such payments should be calculated, tribunals will likely approach the issue on a case-by-case basis.

In short

“COMMISSION MUST BE INCLUDED IN HOLIDAY PAY IF IT IS INTRINSICALLY LINKED TO THE PERFORMANCE OF TASKS IN AN EMPLOYEE’S OR WORKER’S EMPLOYMENT CONTRACT”

  • Following a landmark court case, employees must consider commission when calculating holiday pay
  • Holiday pay must include commission if it’s part of an employee’s ‘normal remuneration’
  • Pay will be calculated based on the amount of commission earned in a representative period.

If you have an employment query, speak to Karen Cole today.

Note: This is not legal advice; it provides information of general interest about current legal issues.

Stay in touch

Subscribe to our newsletter

Stay in touch

By completing your details and submitting this form you confirm you are happy for us to send you marketing communications and that you agree to our Website Privacy Policy and Legal Notice and to us using Mailchimp to process your data.


Sending

News/Insight

  • Workplace non-disclosure agreements: What they cover, what they cannot, and what is changing
    Few employment law topics have evolved as quickly in recent years as the non-disclosure agreement, or NDA. Once a quietly drafted provision in a settlement document, the NDA has become a focal point of public debate, parliamentary reform and regulato


    Read more
  • Mitigating risks in business sales and purchases: Is warranty and indemnity insurance essential?
    Understand how warranty and indemnity insurance can help buyers and sellers manage risk, support deal certainty and facilitate smoother M&A transactions.


    Read more
  • Double jeopardy of digital asset inheritance planning amid probate delays
    Hidden digital assets and mounting interest on inheritance tax bills are creating a costly double risk for families dealing with estates following the death of a loved one, as probate delays continue to impact thousands across England and Wales, addi


    Read more
  • Deal or no deal? Keeping negotiations on track
    How to keep commercial deals on track with Heads of Terms, NDAs and exclusivity, improving efficiency, reducing risk and avoiding delays.


    Read more
  • Rights and wrongs: How AI is reshaping Employment Tribunal claims
    AI may be a familiar presence in the workplace, but it’s now starting to appear somewhere less expected: the Employment Tribunal (ET). Grayson Stuckey explores this trend – and what it means for employers.


    Read more

What they say...

  • Client, May 2026
    Inspired confidence “Charlotte was assured and thorough, as well as being friendly and warm.”

  • Client, May 2026
    Charlotte is great “Charlotte Barbaroussis has been efficient, professional and clear at all times.”

  • Linda Grant, April 2026
    LPA Property and Financial Affairs / Health and Welfare Update “This update was carried out in a timely fashion and in detail. Many thanks to Charlotte Barbaroussis.”

  • W Sandover, April 2026
    Boundary Wall dispute “Although (for complex, not relevant) reasons, this matter never reached the point of either negotiations or a court case, Barker Gillette staff provided us with excellent support. I would certainly go back to them in the

  • Client, April 2026
    Excellent suppy “Karen Cole supported me through a difficult time with warmth and professionalism. She made the entire process as smooth as possible, responding quickly to communication and giving clear advice. I would highly recommend Karen to

Read more
Send this to a friend