Holiday Pay for Part-Year Workers
Part 1: The Case ‘Harpur Trust v Brazel’
The much-awaited judgement of the Supreme Court on the case of Harpur Trust v Brazel has been published (20th July 2022) and is now authority for how to calculate holiday pay for part-year workers.
You could assume that the judgement only applies to traditional term-time only workers, however the judgment could have a major impact on other categories of worker.
The Harpur Trust v Brazel case summary
To summarise, the case was brought by Ms Brazel who was employed on a permanent term-time only contract as a music teacher in a school. She worked irregular hours during term-time only. Rather than having a set number of hours each week, she typically worked between 10 and 15 hours of lessons per week over 32 weeks of the year. Her number of hours worked were based on the demand for the ‘extra curriculum’ music lessons. Her contract of employment stated that she was entitled to 5.6 weeks holiday per year (the minimum amount of holiday stipulated by the Working Time Regulation). It was the arrangement with the school that she took her leave during the school holidays. The amount of weeks she didn’t work exceeded the number of weeks of school holidays.
Her employer, The Harpur Trust, changed how they calculated her holiday pay and used the ACAS guidance (which was in place at that time) to multiply the number of hours worked by her rate of pay and then multiply this is by 12.07%.
The 12.07% method has been a common practice and is derived by dividing 5.6 (the statutory number of weeks holiday entitlement) by 46.4 (being 52 weeks minus 5.6 weeks). So, this assumes that the minimum 5.6 weeks holiday is equivalent to 12.07% of hours worked per year.
By changing to this method, Ms Brazel received less holiday pay. She brought an Employment Tribunal claim for an unlawful deduction of wages, arguing that the 12.07% calculation was incorrect and that her holiday pay should be treated the same as a full-time worker by using the ‘calendar week’ method. This method calculates the average weekly pay over the previous 52 (or at the time of the claim, 12) weeks.
She was initially unsuccessful but won on appeal at the EAT. The Trust had proposed alternative methods of calculating pay for part-time workers, but the Supreme Court said that this was ‘extremely complicated’ and would require all employers to keep detailed records of every hour worked by employees.
Outcome:
The Supreme Court has now confirmed that the calendar week method represents the correct implementation of the Working Time Regulations and the amount of leave to which a part-year worker is entitled to should not be pro-rated. Therefore, part-year workers are entitled to 5.6 weeks holiday, the same as full-time workers.
Part 2: Look out for our analysis of the implications of this important case
