STOP PRESS: Government launches consultation on the Harpur Trust v Brazel Supreme Court judgment

13th January 2023

On 12 January 2023 the government launched a consultation “seeking views on proposals to pro-rata holiday entitlement for part-year and irregular hours workers based on the annual hours they work”. This is in response to last year’s landmark Supreme Court judgment in the case of Harpur Trust v Brazel and will be of significant interest to schools. The consultation can be found here.

Schools will no doubt be familiar with the ruling last year of the Supreme Court in the case of Harpur Trust v Brazel. This confirmed that holiday entitlement for permanent part-year workers should not be pro-rated to that of a full-time worker. We produced a detailed note on the Supreme Court judgment which can be found here and are aware that many schools have been taking steps to ensure compliance.

As a result of the judgment, part year workers are entitled to a greater holiday entitlement than part-time members of staff who work the same number of hours over the course of the year. The consultation is focused on addressing this disparity and seeks views on the introduction of legislation to enable holiday pay to be pro-rated for part-year workers, meaning holiday pay is proportionate to time worked.

What is the government proposing?

The government proposes to introduce a 52-week holiday entitlement reference period for part-year and irregular hours workers, based on the proportion of time spent working over the previous 52-week period. Importantly, it is proposed that weeks in which workers perform no work will be included in the holiday entitlement reference period. This would differ from the current calculation method that applies to workers with irregular hours where weeks without work are excluded from the 52-week reference period and would seek to address the windfall scenarios arising from the judgment. In a nutshell, holiday pay will be pro-rated as for year-round staff.

What this means for schools

Many schools will have already taken steps to remedy holiday pay for those members of staff who work part-year following the Supreme Court decision or will be in the process of doing so. As it stands, the Supreme Court decision remains binding law and legislation will be required to alter the current method of holiday pay calculation. Nevertheless, the consultation offers hope that the disparities caused by the decision in Brazel will be addressed. Schools that are currently considering implementing changes as a result of the decision may wish to seek advice in the light of the consultation. Those that have implemented changes can be assured that they are acting in compliance with the current law but will wish to keep a watchful eye on developments arising as a result of the consultation and any legislative changes subsequently introduced.

The consultation closes on 9 March 2023, and it is open to schools to respond. We will provide a more detailed guidance note for schools addressing the key questions arising from the consultation next week.

In the meantime, if you have any queries regarding Harpur Trust v Brazel and the consultation, please contact Rachel Parkin or Oliver Daniels.