Harpur Trust -v- Brazel
This long running case has finally reached the Supreme Court, whose decision makes good reading for many part-year workers.
Ms Brazel was a music teacher who worked in term time only. She was not paid during holidays.
As is often common in these cases, she was instead paid ‘rolled up’ holiday pay. That was paid at 12.07% of pay (since 12.07% is the percentage that you get if you look at 5.6 weeks’ statutory holiday as a proportion of the weeks worked in a year).
Ms Brazel argued that the common 12.07% approach was wrong. She pointed to the Working Time Regulations which incorporate a statutory method of calculation for holiday pay which, at the time her case arose, meant that an Employer should look at a reference period of 12 weeks prior to each holiday period to calculate an average of pay during that period.
The Supreme Court agreed.
This was notwithstanding that the Court’s approach resulted in average holiday pay in the order of 17% for Ms Brazel.
Her employers tried to argue that this could not be the right approach – since it meant that part-year workers were put at an advantage compared to workers who work all year round.
The Supreme Court pointed out that the law did not prohibit more favourable treatment of part-time workers. It is discriminatory and unlawful to subject part-time workers to less favourable treatment but the operation of the statutory calculation method did not, of course, result in any less favourable treatment.
This case probably spells the end of the 12.07% approach to rolled up holiday pay and employers are going to need to look at how holiday pay is calculated going forwards.
The law did however change, in April 2020, so that the reference period over which average pay is calculated now stands at 52 weeks, not 12. Nevertheless, this latest decision may still benefit many part year workers since weeks in which they do not earn any money will be disregarded (up to a point) in calculating average pay over the reference period.
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