Holiday pay: Holiday pay calculation based on basic pay without commission

Key points

In Evans v Malley Organisation Ltd t/a First Business Support [2003] IRLR 156 the Court of Appeal holds:

• An employee who was paid a basic salary, plus commission which depended on contracts he won for his employer, was entitled, on termination of his employment, to accrued statutory holiday pay calculated by reference to his basic pay alone, and not his average pay including commission.
• For the purposes of calculating "a week's pay", the employee's remuneration did not vary with the amount of work done during normal working hours, but with the results of that work, in the sense of contracts successfully secured, often many months earlier - which was a different concept from that envisaged by the relevant statutory provision.