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The implications of Brazel v The Harpur Trust on part-year employees’ holiday entitlement

In Brazel v The Harper Trust, the Court of Appeal decided that a teacher engaged on a term time only contract was entitled to 5.6 weeks holiday per year, even though she did not work for the whole year. This was the minimum requirement and it couldn't be pro-rated to reflect the number of weeks she actually worked. Nor, could the employer apply the 12.07% 'formula' for working out her holiday entitlement.

This decision will impact on many colleges that engage staff on term time only contracts and will, inevitably, drive up costs.

Facts

The Harpur Trust employed Ms Brazel on a zero hours contract to teach music. Her contract provided her with 5.6 weeks’ paid holiday, which had to be taken outside normal school holidays. She worked different hours each week and was paid monthly on the basis of an agreed hourly rate applied to the hours worked in the previous month. The length of the school terms varied from year to year from between 32 and 35 weeks.

The Trust argued it could pro-rate her holiday entitlement and pay to reflect the fact that she worked fewer weeks per year than comparable full time staff.

To ensure she didn't receive more holiday pay than full time staff, it capped her holiday pay by applying a fixed formula of 12.07%. [The 12.07% figure is 5.6 weeks’ holiday, divided by 46.4 weeks (being 52 weeks – 5.6 weeks.] She argued that this was incorrect and resulted in a significant underpayment.

Court of Appeal's decision

The key issue was whether term time only workers (or others who only work part of the year on permanent contracts) could have their holiday entitlement pro-rated to reflect the number of weeks they actually work each year and, separately how their pay should be calculated.

The pay issue was straightforward. Workers should receive their 'normal pay' when they take a holiday. In the case of those whose pay varies, this had to be averaged over the previous 12 weeks. Applying the 12.07% formula was therefore wrong. Most organisations already do this. However, the Court said that these workers must receive at least 5.6 weeks holiday. It could not be pro-rated because the Working Time Regulations 1998 don't include a pro-rata principle. Plus, leave doesn't accrue on a day to day basis other than in the first year of employment.

For part time staff, this doesn't matter because their 5.6 weeks holiday will reflect the hours or days they actually work each week. So, for someone working three days a week, 5.6 weeks holiday amounts to 16.8 days leave.

The Court accepted that this straightforward approach could lead to 'odd results' in 'extreme cases'. It said that employers who only needed staff for a few weeks each year would have to put up with this, or change the way in which they contract with their staff if they didn't want the 'additional costs that come with that choice'.

Impact

This decision only applies to staff engaged under permanent contracts. You can continue to apply the 12.07% formula to work out the accrual rate for casual staff. But, if you work out the holiday entitlement of term time only workers (and others you engage on other part year contracts) based on the weeks they actually work you will have to change this to make sure they receive 5.6 weeks paid holiday per year - even if they only work a few months per year.

Will the decision be appealed?

We don’t yet know. The Harpur Trust has applied to the Supreme Court for leave to appeal and that decision is awaited.

How to comply post-Brazel?

Many colleges engage individuals on part-year contracts and have pro-rated their holiday entitlement to reflect the number of weeks they actually work. As the law currently stands this means they have underpaid staff.  

Therefore, there is a risk that affected ‘part-year workers’ may bring claims for unlawful deduction of wages in respect of any unpaid holiday. Mrs Brazel was supported by Unison and it and other unions have started to write to employers to demand that holiday pay is adjusted (and backdated) for term time staff whose holiday has been incorrectly pro-rated.

Holiday pay claims in England, Wales and Scotland are usually brought as unlawful deductions claims and these can’t go back further than two years. Even so, this could amount to a significant liability and colleges should start to conduct an audit to ascertain, how many staff are affected by this decision and set aside a budget to meet potential claims – something that won’t be easy in this economic climate. They should also decide whether to comply with Brazel now or wait and see if it is successfully appealed.

Some employers are also entering into different arrangements with staff that they may otherwise have employed on term time contracts to avoid having to pay ‘extra’ holiday. These include entering into fixed-term contracts or engaging staff term by term.  

Charlotte Sloan, Senior Associate, employment team, Irwin Mitchell

Charlotte is a senior associate and heads up the Gatwick division of the Southern Employment Team. Charlotte supports both school and FE clients on the full range of employment law matters. As an experienced lawyer, she has particular expertise in supporting clients with complex issues such as tricky sickness absence cases, restructuring, TUPE and breakdowns in employment relationships. Charlotte regularly presents at seminars on topical employment law issues including at a number of events for HR professionals in the education sector.

Changes to the law as of 6 April 2020: New document (published 3 Mar) provides guidance on how to calculate holiday pay for workers whose hours and / or pay are not fixed.

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