Anyone else waiting for Brazel v Harpur Trust?

[Merryoldgoat]

I hope judgement and any necessary guidance are out soon as I need to start the calcs for the September starters.

Obviously I work at a school.

Judgment is out- came out late this morning.

I work in HR in education- this is a big headache!

Does it mean that if part time (not a teacher) I will receive the full holiday quota and not pro rated?

Ah no it won’t effect me sadly

i work in education too. It’s a nightmare. I’m assessing the impact this week but we’ll be paying out thousands. I’m expecting it to also be subject to backdated pension and ERNI too.

An utter pain.

It's less about part time and more about reduced week contracts (term time) and hourly paid/casual workers.

Basically the absolute minimum holiday someone should get is 5.6 weeks of the average working hours but excluding any weeks they don't work.

Let's say your FTE holiday entitlement is 5.6 week and FTE hours are 40 hours over 52 weeks but your employee works 20 hours over 36 weeks their FTE would be 0.39 FTE and they would be receive an equivalent holiday entitlement. For hourly paid staff or casual staff the advice was always to calculate holiday as 12.07%.

So the 12.07% is now redundant and the person working 20 hours over 36 weeks should receive the same 5.6 weeks as someone working the full year (46.4 weeks).

I'm waiting for legal advice as to the liability for claims over and above the statutory minimum. Our FT holiday entitlements are generous so term timers have always been paid at least 5.6 weeks but there's still a question as to whether the ruling gives rise to claims under part timer work regulations for the same principles to be applied to contractual leave entitlements.

If this is the case we will probably stop using term time contracts because we may as well employ someone on a full year contract. Another indirect blow for working women.

I find it bonkers tbh. I don’t understand how if you work, say, 12 weeks of the year (not unusual for us as our seasonal coaches may only do a term) they still get 5.6 weeks paid leave.

We’ll keep TTO contracts as they assist when recruiting but it’s a total ballache as I now have to reprogram the new HR system we’re rolling out and go through the testing again.

I'm also a bit confused by it tbh - especially for non school businesses who sometimes allow term time working as a flexible working type favour.

With the coaches presumably you could hire them on 1 twelve week contract then physically stop employing them for 8 months, then re-employ them? It's the multi year nature of the contracts I think? Unless I've misunderstood the judgement.

I've only worked in a school for a year, but it seems we already give full holidays to TTO people only. Even our music staff who only work for 30 weeks

The ruling was 2019 but has been through appeals since so some places adopted a wait and see approach. It sounds as though your school adopted the ruling earlier - sensible in hind sight!

Yes, you can. This is a lot of extra work for my team as they will then need to go through recruitment and vetting process again the following year and we would likely lose our best staff.

Same situation with exams invigilators- we have exams year round so not as easy to just employ them for 8 weeks in peak exam season

And when calculating holiday pay for the period of employment you’d need to do the proration using the full holiday allowance.

So an exam invigilator who only works 12 weeks in the year earning (say) £400/week (excluding holiday pay) for each of those weeks used to receive 12.07% holiday pay ie. £579.36 for a total annual cost of £5379.36.
Due to this ruling they should now get 5.6x400=2240 holiday pay for a total annual cost of £7040. That's an increase of 30.87%.

Or, as someone earlier said, they can be terminated and have to be recruited twice a year, with applications, DBS checks etc each time.

A third choice would be to reduce their hourly rate - which is possible for some roles, but some others would be restricted because it can't drop below national minimum wage.

Good luck to the staff having to sort out this mess!

The Harpur Trust argued that it is absurd that a part-year worker receives holiday pay that represents a higher proportion of their annual pay than is the case for other workers. The Supreme Court accepted that an absurd result was unlikely to be what parliament intended when the regulations were enacted but argued that a "slight favouring of workers with a highly atypical work pattern" was not so absurd as to affect their interpretation of the regulations. They agree their decision would produce anomalies in untypical cases, but they believe it is unusual for a worker to be engaged on a permanent contract when their services are only required for a few weeks a year.

Employers have two ways of dealing with this. Either they must give part year workers a full 5.6 weeks holiday pay every year regardless of how many weeks they actually work, or they need to dismiss them and re-employ them repeatedly. Reducing pay for existing employees isn't really an option as that could lead to claims for constructive dismissal.

I'm afraid this is a case where I suspect the Supreme Court's ruling will not have the intended effect. I think that, rather than providing disproportionate holiday pay for part-year workers as the Court clearly intended, the result will be that part-year workers will be repeatedly dismissed and re-engaged, thereby losing the right to claim for unfair dismissal, reducing redundancy pay, etc.

So (exam invigilator here) how does that work if you are on a zero hours contract? I get maybe 15 hours per week in exam season and nothing outside those times…

If they keep you on the books then you should receive 5.6 weeks holiday based on your average hours during the weeks you did work- there's an example below.

Does anyone know how far back the backdating will go? I can't seem to find that info. Sorry if I missed it.

Potentially two years.

Deadline to claim is 3 months after the last breach so we plan to quietly correct and hope it takes people more than 3 months to notice

What does breach mean? Should I email my various employers and just ask if they will be applying the holiday pay as per this ruling?

Think I need to read my contract re holiday pay too!

Could you tell me where the information about backdating and the 3 month deadline to claim underpayment comes from please?

Sorry quote button didn't work - for prepared101

The 3-month deadline refers to the time you have to make an employment tribunal claim under the Employment Rights Act 1996. The two-year limit for claiming backdated underpayments comes from the Deduction from Wages (Limitation) Regulations 2014.

So does that mean we actually have yo
make a tribunal claim within 3 months? Or just let the employer know we would like our backdated pay (which will be very small cos no exams in Covid)…

Yes. Have a Google of Bear Scotland and Lock v British Gas (another holiday case!)

The time limit for an unlawful deduction claim is within 3 months of the last unlawful deduction having been made (i.e underpayment of holiday).

In Bear Scotland it went to EAT and they said that a gap of 3 months or more between the deductions it generally (they used that word so it's not absolute ) breaks the chain which can potentially reduce liability.

If a claim is made in time (i.e within 3 months) the claim can be backdated for up to two years.