Part year workers holiday pay case listed for hearing in Supreme Court

We understand that, following a successful application by The Harpur Trust, the Supreme Court has now listed the case of Brazel v. The Harpur Trust, for a hearing of the appeal on 9 November 2021.

The Court of Appeal decision

The Court of Appeal previously held that to calculate holiday pay for someone who does not work the whole year (i.e. a part-year worker) using the 12.07% multiplier is unlawful, because it results in the individual receiving a pro-rated amount of the statutory 5.6 weeks holiday (which is not permitted by the Working Time Regulations 1998). Instead, the Court of Appeal 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.

In reaching this decision, the Court of Appeal acknowledged that this would result in Mrs Brazel (and other part-year workers) receiving holiday pay representing a higher proportion of their annual earnings than full-year workers. It did not consider that this was obviously unfair.

Further details on the CA’s judgement are available here.

Impact for schools

The outcome of the upcoming appeal to the Supreme Court will be significant for 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 previously been conventional for schools to calculate holiday pay for such staff based on the 12.07% multiplier.

The decision also impacts on other permanent, term time only workers because it applies equally to a situation where a term time only member of staff’s salary is calculated as a pro-rated element of a year-round member of staff’s salary. This is because by pro-rating the salary, the holiday pay is also effectively pro-rated.

Depending on the outcome of the appeal next November, schools may need to consider their practices for calculating holiday pay, particularly if the appeal is unsuccessful. In the meantime, schools should seek specific legal advice in respect of the calculation of holiday and holiday pay for part-year workers, particularly in the light of the pending appeal.

For a comprehensive practical guide on holiday for part year workers and the impact of the Court of Appeal’s decision on schools, please read our advice note which is available here.