20 August 2019 
Caroline Jones, Employment tax director
The recent court of appeal decision in, Harpur Trust v Brazel and potential implications for term-time workers in the HE sector.
Mrs Brazel is employed as a music teacher on a permanent contract, working term-time only. She isn’t required to work during school holidays, and is paid holiday pay 3 times a year, at the start of each of the main school holidays. Her holiday pay was calculated, based on hours worked in the preceding term, using the multiplier of 12.07% as suggested by ACAS in their guidance, Holidays and Holiday Pay.
Mrs Brazel argued that she should be entitled to 5.6 weeks' leave a year even though she only worked during term time. She also argued that, because her hours were dictated by pupil demands, meaning that she didn’t have ‘normal’ working hours, the amount she should be paid for her holiday should be calculated by averaging her pay over the 12 weeks actually worked immediately prior to the relevant holiday being taken, rather than using the 12.07% multiplier.
The Court of Appeal considered whether the use of 12.07% met the requirements of the Working Time Regulations, (WTR). These state that all workers are entitled to 5.6 weeks' leave annually. Although the European Directive, from which the UK rights were implemented, would allow some form of pro-rating, this has not been adopted in the WTR. The Court agreed with Mrs Brazel that technically someone employed under a permanent contract but only working for part of the year should receive the same holiday entitlement as an individual who works all year round.
If the Harpur Trust is granted leave to appeal to the Supreme Court and is successful, it is possible that the pro-rata principle could be re-instated in terms of how the entitlement to holiday and holiday pay under the WTR is interpreted. However, it may be some time before this is determined and in the meantime the Court of Appeal decision is binding. In accordance with current UK legislation any claims brought after 8 July 2015 will be limited to two years' arrears for each employee from the date of claim.
