The Supreme Court has concluded in Harpur Trust v Brazel that part-year workers should not have their leave entitlement calculated on the same principle, proportionally, as full-time employees (which would mean that the weeks they don't work reduce their entitlement), but should have their leave calculated ignoring those weeks. Their entitlement is to 5.6 weeks' holiday a year, and non-working weeks must be ignored.
The claimant worked during term time under a zero-hours contract, under which her weekly hours fluctuated, and she was required to take her holiday during school holidays. Her contract stated that she had the right to 5.6 weeks' annual leave.The school calculated her entitlement to holiday pay as 12.07% of the hours worked the preceding term, relying on Acas guidance (since amended) which stated that the statutory holiday entitlement of 5.6 weeks equates to 12.07% of hours worked over a year.
The Court held, that when working out holiday pay for workers who only work during term time, it is wrong to apply the 12.07% calculation, or to carry out any pro rata calculation to reflect the fact that they do not work the full year. The Working Time Regulations make no provision for pro-rating.
Take note: Although the decision in Brazel is limited to cases of "part-year workers" on permanent contracts, it will affect workers without normal working hours. For these workers a week's pay will be calculated by reference to the average remuneration over the previous 52 weeks (prior to 6 April 2020 the reference period was 12 weeks) in respect of which the work received remuneration (up to a maximum of 104 weeks). No account will be taken of weeks in which no remuneration was received. Where there are no normal working hours, supplementary payments such as overtime payments and commission are included in the calculation of average remuneration.
