Yesterday, 20^th July 2022 saw the UK Supreme Court release their judgement on the infamous Harper Trust vs Brazel case relating to holiday entitlement and pay for ‘part-year’ workers eg. term time, ruling in favour of Ms Brazel.

Effectively, whilst the ruling has more bearing on part-year workers, it actually affects all workers who work irregular hours/days. It means that the 5.6 weeks annual entitlement to paid leave under the WTR 13 and 13a is available to all workers irrespective of their working pattern. As highlighted in this judgement and the previous EAT and Appeal Court judgements, there is no provision for proportioning leave based on working patterns. The only effective proportioning it allows for is 1^st and last year accrual. 

Ultimately, we cannot see that it will have an effect on those permanent part-time staff who work either fixed hour and/or days in a week. For example, someone who works fixed 3 days a week has a holiday entitlement of 5.6 x 3 days = 16.8 days.  A week’s holiday only requiring the submission of 3 days annual leave. Pay being the standard weekly pay of 3 days or average over 52 paid weeks if the hours over those fixed 3 days are irregular or varied. Hourly staff working on the same hours x 5.6 principle.

But it will have an effect on bank/zero hours staff whose hours/days are irregular and may not work one week from the next. In this instance the organisation will need to show that its calculation of leave entitlement is based on the worker getting 5.6 weeks paid leave over the year. I believe the pragmatic approach is that these workers are allocated the same days/weeks entitlement as for full-time staff. If they want to take a week then they use 5 days of their entitlement and get paid their average weekly pay. If they want a day or half day then they could receive 1/5^th or 1/10^th of the weekly average respectively. Whatever method used, the use of the old 12.07% accrual is no longer applicable!

The principle behind the ruling actually lies in the ‘paid’ element of the entitlement and with the calculation of the average weekly wage iaw the WTR and ERA respective sections. The ruling recognises that the effect of it may entitle part-year workers to receive more in holiday pay then a full-year worker and this is something that managers and HR staff are likely to have to deal with in the near future. 

I do wonder though, if the business community will now lobby parliament for a change in the WTRs to allow for proportioning for part-year workers or how the average wage is calculated for part-year workers, we watch with interest.

https://www.supremecourt.uk/press-summary/uksc-2019-0209.html