Update: term-time working and holiday

Tomorrow the Supreme Court will hear the employer's appeal in Harpur Trust v Brazel and will have to decide if a worker’s right to paid annual leave is accumulated according to their working pattern and/or is pro-rated. 

Facts

The Harpur Trust employed Ms Brazel on a zero hours contract to teach music. Her contract provided her with 5.6 weeks’ paid holiday, which had to be taken outside normal school holidays. She worked different hours each week and was paid monthly on the basis of an agreed hourly rate applied to the hours worked in the previous month. The length of the school terms varied from year to year from between 32 and 35 weeks. 

The Trust argued it could pro-rate her holiday entitlement (and pay) to reflect the fact that she worked fewer weeks per year than comparable full time staff and Ms Brazel brought proceedings, arguing that this was in breach of the Working Time Regulations and Part-time workers (Prevention of Less Favourable Treatment) Regulations.

She was initially unsuccessful, but succeeded on appeal. The Trust then appealed to the Court of Appeal which concluded that workers engaged on permanent part-year contracts must receive at least 5.6 weeks holiday. This could not be pro-rated because the Working Time Regulations 1998 don't include a pro-rata principle in these circumstances. 

The employers appealed to the Supreme Court who will hear the case on 9 November 2021.

Why the outcome matters

This decision will impact many employers, particularly those in the education sector, who engage lots of staff on term-time only contracts. Many have pro-rated their holiday entitlement to reflect the number of weeks they work each year (usually 39, compared to 46.5 weeks for a full-time employee) and, as the law currently, stands may have underpaid staff.

The unions have been actively pursuing holiday claims on behalf of term-time only staff. In 2018, Unison helped 5,000 term-time staff employed by Greenwich Council receive compensation for unpaid holiday amounting to over £3.7 million. You can read more about that case here. And, Unison also intervened in the Brazel case because the principles involved affect hundreds of thousands of other workers.

We can help

We can review the terms and conditions of your term time/part year workers and identify your risk to potential litigation. Please contact Glenn Hayes for details.