Term Time Holiday Pay
Thursday 12th September 2019
In The Harpur Trust v Brazel, the claimant was a visiting music teacher employed on a permanent zero-hours contract, who worked mainly during the term time.
The Trust argued that her holiday pay should be only based upon the weeks that she actually worked. In line with ACAS guidance for casual workers, her holiday pay was calculated on the basis of 12.07% of her total pay for the year (i.e. her term time work).
The claimant challenged this and argued that such a calculation was contrary to the Working Time Regulations and contended that her holiday pay should be calculated based upon 5.6 weeks per year, just like a full-time teacher (i.e. a week’s pay x 5.6).
This went all the way to the Court of Appeal, who agreed with the claimant finding that the Working Time Regulations did not make any provision for pro-rating holiday pay entitlement where an employee did not work a full year. The Regulations simply required calculating an employee’s weekly pay (by taking a 12-week average prior to the calculation date) and multiplying it by 5.6.
Any employers who are still calculating holiday pay for “part-year workers” at 12.07% of annual pay will need to change the way in which they calculate holiday pay.