09-08-2019

This is often a subject that is discussed in detail and at great lengths about the fairness and equality of the difference between a ‘term-time worker’ and that of a ‘casual worker’.

Should the ‘term time worker’ be calculated on a pro-rated basis or should they be using their average earnings over a 12-week period.

During a recent case held at the Court of Appeal – The Harpur Trust v Brazel, the outcome resulted in a NO decision. No, they are not to be pro-rated and holiday pay should be calculated on a 12-week period.

It is important to firstly identify the difference between the 2 types of workers here: -

A ‘term time (part-year) worker’ has been deemed to be someone on a permanent contract, who may work part of a week, part of the year (term time).

Whereas a ‘casual worker’ is less likely to have regular work and does not receive guaranteed hours, - the principle of someone who is employed on a zero-hour contract.

Unfortunately, Ms Brazel was a music teacher who was employed on a zero-hour contract, thus the reason behind the principle of applying the pro-rated calculation as per ACAS against a zero-hour contract/casual workers.

Ms Brazel argued her case in view of the effect the calculation had on the payments she would receive based on a 12.07% calculation at the end of each term, however, she believed that her holiday pay should be calculated on a 12-week average bringing her holiday pay to 17.5% of her annual salary.

In her initial hearing, it was ruled by the ET that the Trust had been calculating her pay correctly at 12.07%, however, after Ms Brazel appealed at the EAT the decision was ruled in her favour.

The latest judgment from the Court of Appeal has ruled that the WTR does not require calculations for workers under a permanent contract to be pro-rated – as in the instance of Ms Brazel and contractual arrangements.

Thanks to Ed McFarlane of Demoinos HR, HR Reward.


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