Update on Holiday Pay following 'Lock' case judgement in European Court of Justice

19 August 2014

UNISON Scotland is urging members who think they have been underpaid holiday pay to contact their local branch as soon as possible.

The call follows a decision in May this year by the European Court of Justice which means employees who normally get paid enhancements like overtime, shifts and commission - but not when they are on holiday - might be able to make a claim against their employer.

The judgement is the result of a successful claim by UNISON member Joe Lock, in what is now being called the ‘Lock’ case. The court ruled that paid annual leave is a fundamental social right and Mr Lock’s holiday pay should include any commission which is directly linked work, in this case for British Gas. The result of this decision will have important implications for workers across a wide variety of sectors.  In short, the court has said employers need to assess ‘normal pay’ for their workers when they are calculating holiday pay.

Mike Kirby, UNISON’s Scottish Secretary, said: 
“This significant decision confirms what UNISON has been saying for some time. Holiday pay not only includes a worker’s basic pay, but also other payments like overtime, bonuses and commission which can be reasonably said to form part of their normal pay packet.

“We want to work constructively with employers to scope out the impact of this ruling. Employers will need to look at the terms and conditions of their staff and realise that current business models of under-contracting, running on overtime and the inappropriate use of zero hours contracts are no longer an option.”

Branches are writing to all employers where we have members and asking what they intent to do in relation to unpaid holiday pay in respect of additional payments during working time. On a national level, UNISON is collating responses from employers and will then decide a strategy on how best to pursue them.

It is not yet clear how many members may be affected, however, it is vital that any members who think they may have a claim get in touch with their local branch as soon as possible.

UNISON Members:
What to do if you think you might have a claim

• Contact your local branch as soon as possible. They will be able to keep you up-to-date on your employer’s response and on UNISON’s claim strategy.

• Ensure your contact details are up-to-date. The easiest and quickest means of contact is through email.

• Contact the branch immediately if your employer stops making the payments for commission, other supplements, bonuses or over-time pay; or if your employer starts paying any unpaid commission, other supplements, bonuses or overtime pay during annual leave.

• For more information please contact your local branch officer.