Term-time working is most commonly associated with the education sector, be it in regards to teachers, support staff, caterers, cleaners and so on. Calculating holiday pay for such individuals can often be a challenge for employers, requiring them to adopt a different more complex approach. Helpfully, the case of The Harpur Trust v Brazel has provided some clarity as to how employers can calculate holiday pay moving forward.
Brazel (the Claimant) was a visiting music teacher in permanent employment. She only worked during term time (on average 32 weeks of the year) and around 32 hours a week. Brazel was found to be a ‘worker’ within the meaning of the Working Time Regulations 1998 (“the WTR”) and so was entitled to the statutory minimum of 5.6 weeks paid annual leave.
Brazel was paid in three equal installments in respect of her leave. The issue was how Brazel’s leave payments should be calculated. Brazel’s case was that the required calculation, was based on a week’s pay, by taking the average weekly pay for the previous twelve weeks and then multiplying it by 5.6 weeks.
Brazel argued that there was nothing in the relevant provisions which required a different approach to be adopted where the worker does not work the full year. Her employer felt that her holiday pay should be pro-rated to that of a full-year worker.
The Employment Appeal Tribunal held that her holiday pay should be calculated based on a 12-week average of hours worked, making her holiday pay around 17.5% of annual pay, rather than 12.07% for staff working a whole year. For staff working a whole year, 5.6 weeks holiday entitlement is equivalent to 12.07% of hours worked over that year. The 12.07% is 5.6 weeks holiday divided by 46.4 weeks (being 52 weeks of the year less 5.6 weeks).
The Court of Appeal did not believe there was a requirement in EU law to give effect to the pro-rata principle and they agreed with the EAT decision.
If you have any queries regarding holiday pay for part-year workers or have any other queries in relation to this case, then our Employment Team is able to assist.