6th August 2019
You may recall that, in 2018, the EAT judgment in the case of Brazel v The Harpur Trust (UKEAT/0102/17) effectively overturned the established practice – derived from ACAS guidance – of calculating 12.07% of hours worked as accrued statutory holiday pay for workers with irregular hours. The ramifications of the case extended beyond casual and zero hours workers to term time only workers, as the same principle of pro-rata’ing holiday in accordance with the number of weeks’ worked per year is typically applied as part of annual salary calculations.
We published a briefing note in June last year (still accessible to HR subscribers) which set out the details of the case and suggested some options for schools and colleges. As the case was due to go to appeal, one of those options was to hold off implementing any changes subject to the outcome of the Court of Appeal’s ruling.
The case was heard in May this year and its judgment has been published today. In short, the Court of Appeal has dismissed the appeal. The Working Time Regulations do not provide for annual leave to be pro-rata’d for ‘part-year’ workers (such as casuals and term time only staff). It is irrelevant that the correct method of calculating holiday entitlement could, in certain atypical cases, lead to extreme anomalies (the Court considered a hypothetical worker who only worked one week in the year but would still be entitled to 5.6 weeks’ paid holiday).
In light of the details of this judgment we will revisit again our guidance for schools and colleges as well as seek to take soundings from employers in the sector about how they intend to respond. Given the current school closure, this is therefore likely to be published in September. The Harpur Trust has not ruled out a further appeal to the Supreme Court.