The Employment Appeal Tribunal (EAT) has found that holiday pay for term-time workers cannot be capped at 12.07 per cent under the Working Time Regulations.
The case, Brazel v The Harpur Trust, considered the approach to calculating holiday pay. The claimant worked at the respondent school in term-time on a zero-hour contract. The school calculated holiday pay pro rata to the proportion of the year worked, paying it at 12.07 per cent of a term’s pay, using the percentage reflecting 5.6/46.4 weeks. On a working ‘year’ of 32-35 weeks, the holiday pay calculation came out lower than if worked out on the basis set out in s224 ERA – taking a 12-week average of pay from weeks actually worked, and ignoring the out-of-term weeks. The EAT held that basing holiday pay on the 12-week average was the correct approach.
The effect of the 12-week average approach is that holiday pay as a percentage of annual earnings for a part-timer on a 32-week ‘year’ would be 46.4/32 x 12.07 per cent = 17.5 per cent, giving proportionately more holiday pay than a worker working throughout the year getting 5.6 weeks paid leave.
Writing in Daniel Barnett’s employment law bulletin, Ed McFarlane, Litigator at Deminos HR, said: ‘The EAT noted that part-timers are entitled to be treated no less favourably than full-time workers, there is no scope for calculating holiday pay under the Working Time Regulations so as to avoid a ‘windfall’ for part-timers, or to avoid full-timers not being treated less favourably. The EAT noted that this judgment would be of importance for some schools and teachers.’
