The Education Law Digest – Part-Time Workers’ Entitlement to Holiday Pay
16th November, 2022
In July 2022, the long awaited judgment in Harpur Trust v Brazel was handed down by the Supreme Court.
In this case, Ms Brazel was a music teacher employed under a zero-hours, term-time contract meaning she worked variable hours. The question before the Supreme Court was whether her holiday pay accrued at 12.07% (promoted by ACAS at the time, as workers who work 46.4 weeks a year receive 5.6 weeks of annual leave, meaning it accrues at a rate of 12.07% of the hours worked) or, as Ms Brazel argued, she was entitled to 5.6 weeks, calculated using her average earnings over the 12-week period immediately before the holiday was taken (discounting any weeks where she was not paid), per the approach in the Working Time Regulations.
In determining this matter, the Supreme Court upheld the Court of Appeal’s decision and agreed with Ms Brazel, meaning that such workers are entitled to 5.6 weeks, paid at their average earnings over the previous 52 weeks, ignoring any weeks where the person did not work. This calculation results in a more generous outcome that provided under EU law with Ms Brazel being proportionately better holiday pay when compared with full time staff.
Therefore, for part-time and irregular staff, holiday pay should be calculated based on their average earnings for the 52 weeks (at the time of the case, it was 12 weeks but this has changed to 52 weeks) worked immediately before their holiday. Virtually all schools are likely to be impacted by this decision.
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