Harpur Trust v Brazel – how this case will affect employment practices in schools

The judgment of Harpur Trust v Brazel has a significant impact on schools employing workers on term-time only and zero-hour contracts.

Harpur Trust v Brazel: the case

The case concerns a music teacher on a zero-hour contract who worked roughly 32-35 weeks a year. The matter was initially heard in 2018, where the teacher made a claim for unlawful deductions from her wages by underpayment of her holiday pay.

The trust argued that the statutory entitlement to annual leave should be pro-rated for an employee working fewer weeks than the standard 46.4 week working year.

The trust consulted the Acas guidance booklet and took the view that they were required to make holiday payments based on the number of weeks the music teacher actually worked.  The trust based the claimant’s holiday pay on 12.07% of her earnings which the claimant argued was not correct.

The employment tribunal initially found in favour of the trust and permitted the deductions from the teacher’s holiday pay. However, the judgment was quickly appealed by the employee and the matter was brought in front of the Employment Appeal Tribunal (EAT).

The EAT reversed the decision and decided pro-rating was not appropriate. It was emphasised that the wording in the Working Time Regulations 1998 was clear. This is that a worker on a permanent contract and engaged for a whole year has an entitlement to 5.6 weeks’ holiday. This reasoning was upheld by the Court of Appeal.

The issue is being appealed again and was brought in front of the Supreme Court on 9 November 2021.  All workers are entitled to 5.6 weeks’ paid annual leave per year and the Supreme Court has confirmed that the correct method of calculating holiday pay for “part-year’ workers should be based on average pay, ignoring weeks where an individual does not earn anything. This is the case, even if this means individuals receive a greater proportion of holiday pay than full-time workers.  It was found that there is no legislative provision which means that part-timers cannot be better off than comparable full-time workers.

Comment

This case has significant implications for workers with no normal working hours. This will heavily impact schools who frequently use term-time only and zero-hour contracts for their staff and it is clear that basing holiday pay on an average of 12.07% of their earnings is no longer the correct approach.

It seems likely that there will be further claims for unlawful deductions and underpayments of holiday pay against employers that have used the same method of calculation as the trust.

Overall, the case highlights the importance of seeking advice when dealing with employment law issues. Although there is a great deal of guidance available, it is not always up to date or in keeping with legislation and seeking correct advice can reduce the risk of subsequent claims.

Further guidance and support

We are already supporting a number of schools and trusts with the resolution of related claims. Employers using this method may need to perform a reconciliation at the end of each year and at the end of a contract, to ensure that no workers have been underpaid their holiday pay.

If you need advice on the issues covered in this article, please contact Catherine Daw or take advantage of our free 30-minute consultation with our employment law experts.

This content is correct at time of publication