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Holiday entitlement for ‘term-time’ workers 

The Harpur Trust v Brazel

Ms Brazel was employed by the Harpur Trust as a music teacher.

The hours that she worked depended on the number of pupils requiring tuition, meaning she did not work a full week and did not work at all during summer holidays. Even though she did not work for the whole year her contract entitled her to 5.6 weeks’ annual leave, which had to be taken during school holidays. Typically, she worked for anywhere between 32 and 35 weeks a year.

The Trust paid her 12.07% of her annualised hours for periods of annual leave in accordance with guidance from ACAS. This was done in three instalments, each paid at the end of a term. The 12.07% figure is 5.6 weeks’ holiday, divided by 46.4 weeks (being 52 weeks less the 5.6 weeks holiday that she wouldn’t be working). Ms Brazel complained that this was contrary to the mechanism in the Working Time Regulations 1998 and the Employment Rights Act 1996 and brought a claim for unlawful deduction of wages.

The Trust relied upon the pro-rata principle, arguing that 12.07% was the correct analysis as her holiday entitlement should only ever be proportionate to the number of weeks she works.

Ms Brazel was unsuccessful at an employment tribunal but succeeded on appeal. The EAT held that capping holiday pay at 12.07% of annual earnings was wrong, for a zero hours, term-time employee. The relevant sections of the legislation required her holiday and pay to be calculated by reference to a 12 week period prior to the first day of any holiday period.

The Trust appealed to the Court of Appeal.

Decision

The Court of Appeal upheld the EAT’s decision and confirmed that the Working Time Regulations do not require leave for workers like Ms Brazel to be reduced pro rata.

Comment

Workers are entitled to a minimum of 5.6 weeks’ 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.

Employers should be aware that this decision may leave them open to potential claims for unlawful deduction of wages.

The effect of this decision is likely to be limited as of next April, when the Government is proposing to change the calculation period from 12 weeks to a year.

If you would like any advice in relation to holiday entitlement for part-time workers or have any other employment law or HR queries, please contact our employment team on 01228 552600 or 01524 548494.

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