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.

You should always look to resolve internally first.

So the clock doesn’t start until they start doing it correctly? If they keep paying st 12% ish for holiday pay they are still doing it wrong….then if they correct it going forwards it’s 3 months to claim for backdated correction?

I'm confusing myself now! With a full time employee they are paid for 52 weeks of which 46.4 are working and 5.6 are holiday.

In the past the example of a 50%/39 week person, they are paid for 39 weeks of which 1.6 weeks was holiday (0.5 4.6 39/56) and 37.4 was working? Or is it 39 weeks working plus 1.6 weeks holiday?

So now they will need to be paid for 37.4 (or is it 39) working weeks plus 5.6 holiday weeks?

That's going to be fun for school budgets (not). Presumably you now put them all on full year contracts (on the same pay as before) and don't allow holiday to be taken in term time? Or does the theoretical reduction in hourly pay if you do that make it an issue?

Sympathy to those of you in HR dealing with this!

Meanwhile I have emailed the bursar at the school I work at simply asking how the results will affect invigilator pay...will see what he says! I wonder if the solution isn't going to be to make us all self employed....

The clock for making a claim doesn't start until they start paying you correctly. However, you can only claim for 2 years, so, unless you can sort it out internally, you need to get a claim in as quickly as possible.

Your calculations in your next post are a little out. You seem to have used 4.6 weeks holiday as the base entitlement instead of 5.6, and the year seems to have gone up to 56 weeks. Someone working 50% of 39 weeks is entitled to 2.1 weeks paid holiday, so they will work for 36.9 weeks and get 2.1 weeks holiday. Alternatively, if they work 39 weeks they will get 2.35 weeks paid holiday.

just my typing - sorry - but you got the idea!!! Cheers!

given my work dates/Covid there’s no working time after Jan 2020 until after Jan 2021 I think so I’ve got time! Bursar tells me they are looking into how they will handle it….I will wait until they come back with an answer to query back payment!!

The andwer is not to employ some staff at all. Eg exam invigilators. Just pay them as self employed contractors. They can then do other jobs if they wish. HMRC might not like it if they have one source of income but I cannot see why such relatively casual work needs full employment rights. Surely it’s better for the school to move them to casual labour?

An invigilator can't choose when to conduct their work or even really how to. They can't choose where to conduct it, and if something goes wrong it will be the school's job to correct it.

I think you'd struggle to pass the CEST test on that basis and given schools have a responsibility under IR35 legislation and can be fined for failure to follow it, I imagine HMRC's disapproval probably needs to be considered.

You can work in different schools. You can do different work when the exam season isn’t in full swing. I think it could be ok to be self employed for some people. It’s like working for a big event. You can work in bars and on the gate but you are casual workers brought in for the event. Not permanent staff.

@TizerorFizz

But most of event type staff are hired via an agency and it’s the agency who act as an employer in those instances.

I think it would be tricky to pass the self-employment criteria even though I agree with you entirely.

I think it’s ridiculous that we have to employ people when they work in such capacities.

As far as m aware agency staff don’t get paid holidays. Just employed at an hourly rate for the job? Could be wrong. Maybe that’s the answer. Use an sgebfy like supply teachers. Do they get paid holidays too?

@TizerorFizz

Agency staff do get paid holiday via the agency who employ them.

Supply teachers who are employed by an agency are paid holiday.

Essentially the drive to stamp out self-employed contractors and make everyone an employee means there are very few ways round the legalities of engaging someone to work in a school (and other places of course).

I can see why there was a need to sort self employment status out though. We know people who took redundancy and retired and then went back to work after a bit in a “consultancy” capacity. They only worked for the one employer and it benefitted the employer to get them off the books. They never looked for work or even quoted for work or paid income tax. Just a big wheeze! However a few hours invigilating is hardly on that scale.

How have you all got on discussing this with employers? Havent heard a peep from my single trust academy employer. I am TTO plus 2 weeks all at 60%; so probably feel this will apply to me. My employer will not be happy if I query this as have already raised this year the unfair sharing of bank holidays for a job share.

We have upped all TTO and TTO plus to min 28 days holiday.

We also paid all existing staff the difference in pay for two years back dated.

Your employer is breaking the law if they don’t pay you currently and have zero come back.

I don’t agree with the ruling but that’s irrelevant. It’s been tested in the high court and Supreme Court - there’s no wiggle room now. They need to pay you correctly.

It’s also worth saying that a lot of maintained schools actually made the changes when the High Court ruling was made so it’s been corrected already and potentially your pay is correct.

Hsppy to look over your calculation if you’re not sure

@thelionthewitchtheaudacityofTHISbitch

Those replies are for you - sorry!

Thank you very much. This thread was very helpful. I shall raise it with the HR manager initially as "I am sure you are aware of this ruling. Can you please advise when you will be communicating with affected staff on how they might be impacted and how you will be proceeding". As you say many employers have already made changes so I dont want to presume they havent. But I have been there now over 3 years and havent heard a peep! TTO only plus contracts are horrid to work through.

And I also agree with you that the ruling is a little odd. But my salary is so low for the workload and responsibility that frankly every little helps.

We still haven’t heard anything except that they are looking into it…

Hi, sorry to jump on a fairly old thread, but I was wondering if anyone has any updates on how their schools/trusts have dealt with this so far? I've only just brought it up with my employer, but they have said they will not make any changes to my holiday allowance or pay any back pay until the Green Book is updated. They said they are bound by it and can't do any different. They also said Unison fully supports their position.

I'm not convinced, but I'm trying to be reasonable as I've already had to raise various other issues with them recently which they had also got wrong, so I'm not popular with them right now! 😂

We’re a stand alone independent school so so our own thing but we paid out affected people two years back pay and adjusted salaries and contracts accordingly.

i had the calcs ready to go so as soon as the judgement was confirmed we went ahead and sent out letters and made payments.

The law is clear (even if it seems bonkers) and every employee is entitled to 5.6 weeks paid leave per year.

Also, seems pretty clear Unison would side with you…

https://www.unison.org.uk/news/2022/07/unison-supported-legal-victory-secures-new-holiday-rights-for-all-workers/amp/