Tens of thousands of employees on term-time contracts or on similar contractual arrangements could be entitled to back pay after a ruling by the UK Supreme Court. This decision will have wide-reaching implications for any organisations that engage zero-hours, term-time only or part-year workers (i.e. workers on permanent contracts who do not work the entirety of the year).

The Supreme Court was asked to consider whether Mrs Lily Brazel, a music teacher at Bedford Girl’s School, whose contract stipulated that she worked only certain weeks of the year, was entitled to 5.6 weeks’ of paid leave per year, the minimum amount of leave set out by the UK Working Time Directive. The Harpur Trust, which employed Mrs Brazel, argued that she wasn’t entitled to the leave and it should be pro-rated to account for the weeks not worked. The effect of this proposals was that Mrs Brazel received less holiday pay.

The Supreme Courts rejected all of the alternative methods of calculating holiday pay put forward by the Harpur Trust, a charity based in Bedford that promotes education through a number of independent schools. The Court said:

“The Harpur Trust also argue that the construction upheld by the Court of Appeal leads to an absurd result, that absurdity being that a worker in Mrs Brazel’s position (and in the position of some of the other hypothetical workers posited by the Harpur Trust) receives holiday pay which represents a higher proportion of her annual pay than full time or part time workers who work regular hours. We recognise, of course, that a construction which leads to an absurd result is, in general, unlikely to be what Parliament intended. However, we do not regard any slight favouring of workers with a highly atypical work pattern as being so absurd as to justify the wholesale revision of the statutory scheme which the Harpur Trust’s alternative methods require”.

The Department of Business, Energy and Industrial Strategy issued guidelines on holiday pay reflecting the Court of Appeal’s decision in the Brazel case, but we are aware that many employers chose to do nothing pending the outcome of the Supreme Court appeal. The Union will be reviewing holiday practices and contracts in all those organisations where our members work, and we’ll take legal action to recover back pay, if necessary.

Members with any questions should contact the Union’s Advice Team on 01234 262868 (choose Option 1).

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