06 December 2013

Holiday pay and commission, and Christians' right not to work on Sundays

Holiday pay and commission payments

Yesterday the Advocate General (A-G) gave his opinion in the case of ZJR Lock v British Gas.   The case concerned whether commission should be included in the calculation of holiday pay for a salesman whose salary was made up of basic pay plus commission based on sales achieved.   The A-G opined that in this case it should because, following the earlier decision in Williams v BA, the commission was intrinsically linked to the performance of the tasks the worker was required to carry out under his contract of employment.

If the Court of Justice of the European Union follows this opinion then it appears that the Court of Appeal case of Evans v Malley Organisation, which held that commission does not need to be taken into account, should no longer be followed.

Click here for the full opinion.

Sunday working for Christians

In the case of Mba v Mayor and Burgesses of the London Borough of Merton, a case concerning a Christian employee's right to refrain from working on Sundays, the Court of Appeal found that the requirement that Ms Mba work Sundays could be justified.

In this case it was accepted that the requirement to work Sundays was indirectly discriminatory so the focus was on justification and specifically the question of proportionality.   Although the Court of Appeal found that the Tribunal had taken the incorrect approach by taking the view that observing the Sabbath was not a "core component of the Christian faith", they went on to find that in this case there was no way in practice for the employer to accommodate Ms Mba's beliefs and so even if the correct approach had been taken, the outcome would have been no different.

Clearly this is not a ringing endorsement for employers wishing to enforce Sunday working where staff wish to observe the Sabbath - as ever whether such indirect discrimination can be justified will depend on the facts of each case.

To read the whole judgment click here.


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