Schools are eagerly anticipating the decision of the Supreme Court (SC) in the case of the Harpur Trust v Brazel, a decision which is expected to provide clarity on the calculation of holiday pay for those who work irregular hours over part of the year (‘part-year workers’).
The case was heard in the SC on 9 November 2021 and as a very broad indication, a judgment can be expected between three to nine months later. By this reckoning, we would anticipate a judgment before the start of the next academic year.
What impact could this decision have on schools?
The judgment of the SC may have significant ramifications for schools. As a reminder, it will consider the decision of the Court of Appeal (CA) that using the calculation method of 12.07% as a way of calculating holiday pay for someone who does not work throughout the whole year (i.e. a ‘part-year worker’) is unlawful.
To calculate holiday pay for part-year workers, the CA determined that, at the time holiday is to be taken, employers should identify ‘a week’s pay’ in accordance with the Employment Rights Act 1996 and multiply that figure by 5.6. This is particularly relevant for those workers who are on zero-hour contracts, or who work irregular hours.
This decision has a significant impact on schools, given the number of staff who work irregular hours over part of the year; for example, zero hours music teachers, sports coaches, and exam invigilators. It had been commonplace for schools to calculate holiday pay for such staff based on the 12.07% multiplier.
The CA judgment remains the current law on this issue until the judgment of the SC is handed down. However, any claim brought in respect of the same legal issue is likely to be stayed pending the decision of the SC.
If the Harpur Trust is ultimately successful in its appeal, the principle of pro-rating the 5.6 weeks’ holiday entitlement for those who work part of the year could be reinstated. If, however, the appeal is unsuccessful, schools who are continuing to use the 12.07% multiplier, will need to change their practices.
Given the impending decision of the SC, we would not generally recommend that schools make substantive changes to holiday pay arrangements until the position is clear. In the meantime, schools should seek specific legal advice in respect of the calculation of holiday and holiday pay for part-year workers.
We will, of course, provide a substantive update once the judgement of the SC is available.