Evans v Malley Organisation Ltd [2003] IRLR 156

Plaintiff was a sales rep for Defendant and was paid a basic rate and very significant commission per unit sold.

Defendant said Plaintiff’s holiday pay would just be the weekly basic rate of pay, whereas Plaintiff argued that it should include commission.

CA held that holiday pay was just at the basic rate.

• Under s. 221(2) and (3) ERA 1996 the holiday pay depends on whether pay varies weekly with the amount of work done: If it doesn’t then standard weekly pay = holiday pay, if it does, then holiday pay = averaged weekly pay.

• CA said that pay didn’t vary with amount of work done because he had fixed working hours.

• (Seems like a realistic interpretation of the statute, which is really concerned with jobs where the hours and hence pay varying each week, not merely varying pay depending upon success).