Harpur Trust – Government Consultation
Following the Supreme Court’s Judgment in Harpur Trust v Brazel, the government has produced a consultation paper to address the issues that have arisen as a result.
The judgment affects those that work part-time with variable hours, zero-hours workers and term time workers. The Supreme Court’s ruling means that these individuals may be entitled to proportionately more holiday pay than some full-time workers and other part-time workers.
The Supreme Court held that the entitlement to 5.6 weeks’ holiday should not be pro-rated for part-time employees as the Working Time Directive does not prevent more favourable treatment of part-time workers. This then meant the “old” way of calculating holiday pay for variable hours workers, i.e by adding 12.07% of earnings, was therefore problematic.
The new way of calculating pay for variable hours workers is to look at the average pay over a 52-week period, discounting any weeks where the individual has not earned anything. The reference period can be extended up to a maximum of 104 weeks.
The consultation has been issued to consider the effect the judgment has had across different sectors and look at any disparities created as a result. The government have said they want “to ensure that holiday pay and entitlement is directly proportionate to the time they spend working”.
The consultation proposes that the weeks taken into account in the 52-week reference period should include weeks where no wages are received.
If, following the consultation, these changes are implemented, Brazel would effectively be overruled.
The consultation ends on 9 March 2023.
Author: Erin Garnham, Trainee Solicitor, Employment
