From education to employment

Landmark case confirms statutory minimum annual leave for all workers #FutureofEmployment

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UNISON have secured a victory at the Court of Appeal affecting hundreds of thousands of employees working part-time and irregular hours or patterns. 

Today (Tuesday 6 August) music teacher and ISM member Mrs Lesley Brazel won her claim to annual leave and holiday pay pursuant to the Working Time Regulations. Mrs Lesley Brazel first sought legal advice from the ISM in 2013 regarding her terms and conditions with her employer, Bedford Girls Schools which is part of the Harper Trust.

The ISM legal team argued right from the start that all workers are entitled to 5.6 weeks holiday pay per year. We made clear that payment for each weeks holiday should be calculated according to section 221-224 of the Employment Rights Act 1996. This stipulates that when payment to employees varies, then the average of the last 12 weeks paid work, prior to taking leave should be used.

Despite losing in the Employment Tribunal the ISM continued to back Mrs Brazel and appealed to the Employment Appeal Tribunal. We recognised the importance of this case to thousands of visiting music teachers and we were not surprised when the employers appealed to the Court of Appeal.

The case was heard at the Court of Appeal on 2 May 2019 and we are delighted that today the Court has found in favour of our member, Mrs Brazel. This is a vindication of the ISM’s decision to back Mrs Brazel through the courts. There can now be no confusion as to how annual leave and holiday pay are calculated.

Lord Justice Underhill made it clear in the decision that the Working Time Regulations “simply require the straightforward exercise of identifying one week’s pay in accordance with the provisions of sections 221-224 of the Employment Rights Act and multiplying that figure by 5.6.” This is what the ISM has argued all along. This was the unanimous decision of the Court of Appeal.

Unsurprisingly, Unison has welcomed the decision and has said that it has implications for hundreds of thousands of employees.

Deborah Annetts, Chief Executive of the Incorporated Society of Musicians said:

“We are delighted that the Court of Appeal has backed the legal advice given by the ISM’s in-house legal team to Mrs Brazel back in 2013. This case is of tremendous importance to all music teachers working in a school setting and to hundreds of thousands of workers. It also shows the incredible determination of Mrs Brazel and commitment of the ISM supporting our member across many years. We could not have done this without the help and support of our wider legal team, Hopkins Solicitors and Counsel, Mr Williams and Mr Gullick, funded by the ISM’s legal expenses insurance. All ISM members have access to our outstanding legal services, a central pillar of being part of the ISM community.” 

Harpur Trust v Brazel & UNISON clarifies the legal position ensuring all workers are entitled to a minimum of 28 days paid annual leave, even if they do not get given work or paid for parts of the year. In addition, this leave must be paid at the rate of a normal week’s pay, or based on the average payment for the preceding 12 weeks if pay is irregular.

UNISON intervened in this appeal, which was being defended by music teacher Mrs Lesley Brazel and brought by Harpur Trust, her term-time employer. The trust claimed she was entitled to leave and pay below the statutory minimum.

The position of leave for hourly-paid workers in the education sector, who are not paid a salary during school holidays, has been unclear due to the absence of government guidance or definitive case law on their holiday rights.

Although Mrs Brazel is not a member of UNISON, the union was concerned about the wider implications of the case and how it would affect hundreds of thousands of part-time workers and those working on irregular hours. It applied to intervene in November 2018.

UNISON general secretary Dave Prentis said: 

“UNISON intervened because this case was about all workers being treated fairly and would have an impact across the whole of the UK.

“Staff in schools are often required under contract to be at school outside term time, and, like Mrs Brazel, are required to do additional unpaid duties beyond those periods. It’s right that they should be paid the same minimum statutory entitlement of 28 days annual leave like everyone else.”

UNISON legal officer Shantha David who acted for UNISON said:

“We’re extremely pleased that the Court of Appeal considered and accepted UNISON’s argument.

“The government’s failure to provide guidance in this area has left workers in limbo. The courts have once again had to step in to stop the abuse of workers and to fix what legislation should have made clear from the outset.”

Peter Woodhouse, Head of Business Sector and Employment Team at national law firm Stone King, said:

“The decision of the Court of Appeal in Brazel clearly shows the court’s position on calculating holiday pay for term-time and seasonal workers and is a warning to employers. It highlights the risk that employers face if they use shortcuts instead of calculating holiday pay under the Employment Rights Act (ERA) 1996. They have to use a set rate and ensure that any “part-year” workers are not receiving less than their statutory entitlement under the ERA 1996.

“In the past, employers have tended to put this in the “too difficult” pile, and staff and unions have not often picked up the point. With this case, that is likely to change and employers need to make some rapid decisions.”

In 2011, the Harpur Trust decided casual and term-time staff should be paid an annual leave allowance of 12.07%. The 12.07% figure was calculated using the 5.6 weeks holiday, divided by 46.4 weeks (which is 52 weeks – 5.6 weeks). The 5.6 weeks are excluded from the calculation as the worker would not be at work during that time in order to accrue annual leave.

As Mrs Brazel worked 32 weeks, they said she was entitled to 3.86 weeks of leave (19.3 days, or 32/46.4 x 5.6 weeks). Therefore it said each day’s leave would be paid at the rate of 12.07% of her pay.

In March 2015 the Claimant presented a complaint in the Employment Tribunal for unlawful deductions from her wages by underpayment of her entitlement to holiday pay.

On 15 January 2017 an Employment Tribunal at Bury St Edmunds dismissed her claim. It held that the application of a figure of 12.07% to either the length of the holiday entitlement or to what it described as the claimant’s “average pay over the course of the working year of 46.4 weeks” would give her proportionately the same holiday-pay entitlement as a full-year worker.

On 6 March 2018, following an appeal to the Employment Appeal Tribunal, Judge Barklem allowed the appeal and said she was entitled to the full 28 days (5.6 weeks) under the Working Time Regulations on the basis of a full week’s pay calculated in accordance with sections 221 to 224 of the Employment Rights Act 1996. The Harpur Trust applied to the Court of Appeal for permission to appeal.

In November 2018, UNISON applied to intervene in this matter as it was concerned about the effect that this appeal would have on hundreds of thousands of part-time workers and those working on irregular hours.

Today’s judgment means that all workers are entitled to a minimum of 28 days annual leave under statute, and this should be paid at the rate of a week’s pay (and if this is irregular, then the average over the previous 12 weeks).

UNISON has had a number of important and high-profile legal victories. This decision comes two years after UNISON’s successful challenge at the Supreme Court overturning the imposition of legal fees at employment tribunals and earlier this year the Court of Appeal agreed that regular overtime should be included when calculating holiday pay.

A link to the judgment is available here.

About The Incorporated Society of Musicians (ISM): The UK’s professional body for musicians and a nationally recognised subject association for music. Since 1882, they have been dedicated to promoting the importance of music and protecting the rights of those working in the music profession.

Supporting almost 10,000 musicians across the UK and Ireland with unrivalled legal advice and representation, comprehensive insurance and specialist services, their members come from all areas of the music profession and from a wide variety of genres and musical backgrounds.

ISM campaign tirelessly in support of musicians’ rights, music education and the profession as a whole. They are a financially independent not-for-profit organisation with no political affiliation. This independence allows them the freedom to campaign on any issue affecting musicians.

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