In a ruling issued on May 22 in a British case, the ECJ decided that the annual leave allowance for employees whose remuneration is made up of basic pay plus commission – whose amount is defined by reference to the contracts signed – must take the latter into consideration based on a calculation method determined by national courts. While it has already had the opportunity to rule on including or excluding certain remuneration elements when calculating AL pay, to our knowledge, it’s the first time the European Court gave a ruling on the fate of a variable part of the salary.
Facts. The British case sent to the judges in Luxembourg relates to Directive 2003/88 on the organization of working time, especially Article 7, which reads, “Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.” The case concerned an Internal Energy Sales Consultant at British Gas whose remuneration consisted of two main elements: basic pay and commission, which varies according to the sales actually achieved.
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