In the landmark ruling of Harpur Trust v Brazel, the Supreme Court has confirmed that workers who are only employed during some weeks of the year, but who have a contract which lasts for the full year, are entitled to a full year’s statutory holiday entitlement of 5.6 weeks per annum. It should not be prorated to that of a full-time worker to take into account weeks in which no work is done.
Under the Working Time Regulations (WTR), a full-time employee or worker is entitled to 5.6 weeks of paid holiday. The amount of the payment depends on the average weekly pay. Under Regulation 16, for those working atypical hours, pay is calculated over the average earnings of the preceding 52 weeks; any week in which the worker did not work or earn anything is ignored.
The Harpur Trust Vs Brazel Case
Ms Brazel, a music teacher at the Trust, was employed on a permanent contract but for term times only. She was only paid for the hours she taught, which varied from week to week. She was entitled to 5.6 weeks of annual leave, which she was required to take during the school holidays.
In 2011, the Trust changed the way it calculated Ms Brazel’s holiday pay. Following ACAS guidance at the time, the Trust prorated her holiday pay to the number of hours worked. It calculated her earnings at the end of each term, took 12.07% of that figure and then paid Ms Brazier her hourly rate for that number of hours as holiday pay. The 12.07% is the proportion that 5.6 weeks of annual leave bears to the total working year of 46.4 weeks. This method of calculating casual workers’ holiday pay is widely used and was recommended in ACAS guidance, which has since been revoked.
Under this method, Ms Brazier received less pay and she subsequently brought a claim for unlawful deduction from wages which was rejected by an employment tribunal but upheld by the EAT and the Court of Appeal.
The Appeal
On appeal, the Supreme Court confirmed that the entitlement to 5.6 weeks’ holiday applies to full and part-year workers in full, without pro-rating. For those with no normal working hours, pay should be calculated by reference to the hours worked over a 52-week average, rather than limited by the number of hours the worker has worked.
In so finding, the Court identified multiple problems with the Trust’s alternative calculation methods, stating that they were directly contrary to the statutory method set out in the WTR. It also held that its methods would require employers to keep detailed records of every hour worked, even if employees were not paid an hourly rate.
The Court also rejected the Trust’s claim that a failure to pro-rata pay would lead to the absurd result that part-year workers would receive holiday pay representing a higher proportion of their annual pay than full-or part-time workers who work regular hours. In the Court’s view, atypical workers were only slightly favoured, and this did not justify a fundamental re-reading of the statute.
If you need help with a disagreement over part-time holiday pay entitlement, contact our expert Employment Lawyers today.
