Pending Supreme Court decision may result in extensive claims for back-pay by term time only staff and other ‘part year’ workers

Noella Gooden

Article written by Noella Gooden, Solicitor (Australian qualified)

Schools, nurseries, charities, and other educational providers are eagerly awaiting the outcome of the appeal to the UK Supreme Court in the case of Harpur Trust v Brazel. The appeal was heard in November 2021, and we are expecting a judgment imminently.

Depending on the outcome of the hearing, employers of term time only staff may be forced to review their practices regarding annual leave, and in a worst-case scenario, face claims for back-pay by affected employees.

What was the dispute in Harpur Trust v Brazel?

Mrs Brazel was a visiting music teacher at Bedford Girls School. She was employed by the Harpur Trust on a zero-hours contract. She did not work a set number of hours per week, rather her hours would vary according to demand for music lessons. She worked during the school term time only and did not work during the school holidays. She was paid monthly, according to the hours that she had worked in the previous month. Schools and charities often employ people who work similar patterns to this and are commonly known as ‘Term Time Only’ staff.

The Working Time Regulations 1998 (“WTR”) applied to Mrs Brazel’s employment, which provides that she is entitled to 5.6 weeks paid annual leave per annum. The Employer followed the ACAS advice on holiday pay (which has since been removed from the ACAS website) which was to pay Mrs Brazel at the end of each school term, an amount of 12.07% multiplied by the total hours worked that term, on account of holiday pay. Thus, in effect she accrued holiday pay only for the weeks that she worked, and not for all weeks of the year. Mrs Brazel argued that this was the wrong approach.

The essential difference between the parties was whether the calculation of Mrs Brazel’s holiday entitlement (or holiday pay) should be pro-rated to that of a full-year worker in order to reflect that she does not work throughout the year, but during term time only.

Prior to the decision in this case, it has been common practice for employers to pro-rata holiday entitlements for term time staff. An example of how some employers have historically calculated holiday pay for staff is as follows:

  • A full time staff member, working 52 weeks per year, receives 5.6 weeks leave in accordance with statutory requirements.
  • A term time only staff member, who works 38 weeks per year receives leave calculated as follows: (38/52) x 5.6 weeks = 4.09 weeks leave.

In this example, similarly to the case of Mrs Brazel, an employer pro-rates the entitlement to leave according to the number of weeks that the employee actually works during the year.

What did the Court of Appeal decide?

The Court of Appeal decided that employers cannot pro-rata leave for term time only workers (note this is different to pro-rating for workers who work part-time, i.e. less than 5 days per week  – which is permissible). Therefore, an employee who works 38 weeks in a year is entitled to the same entitlement to holiday as an employee who works 52 weeks in a year (5.6 weeks for a full time employee).

This case is now on appeal to the Supreme Court. As many employers have historically provided pro-rata holiday entitlements for term time only staff, they may face claims for back pay from employees. For this reason, the Supreme Court decision will be awaited with great interest.

Grant Saw Solicitors will keep you up to date with any developments on this case. Should you wish to discuss any concerns you might have about claims for unpaid holiday pay, please feel free to email me or contact the Employment department on 020 8858 6971.