The Employment Appeal Tribunal, in Brazel v The Harpur Trust, held that it was incorrect to treat holiday pay for term-time teachers as being capped at 12.07% of annualised hours.
The Claimant was a part-time teacher on a zero-hour contract. She was entitled to 5.6 weeks holiday in line with the Working Time Regulations 1998 (WTR). The School calculated her holiday pay at a rate of 12.07% of the hours worked in the proceeding term. It attempted to rely on the ACAS guidelines, which state that the statutory holiday entitlement of 5.6 weeks equates to 12.07% of hours worked over a year. It felt that not applying a cap would mean that these part-time workers would unfairly benefit over full-time staff. The Claimant disagreed with this, as such calculation meant that she was receiving less pay than if the usual 12-week average had been applied.
The Employment Tribunal accepted the School’s argument. However, this was reversed on appeal. The EAT held that a straightforward average 12-week calculation should have been applied under the WTR notwithstanding that this may end up prizing those who worked fewer weeks during the year as opposed to those who worked a full number of weeks. The point of the WTR is to ensure part time workers are not treated less favourably than full time workers, there is no equivalent protection the other way around.
This decision highlights the risk with employers sticking too rigidly to the 12.07% guidance. Calculating holiday for atypical workers can be difficult, however, employers should ensure that if they apply any general rules, they check these at regular points during the year to ensure that these do not result in the employee getting less than the statutory minimum.