Holiday pay for term-time workers successfully challenged in Employment Appeal Tribunal
In the recent case of Brazel v The Harpur Trust, the EAT upheld a music teacher's appeal challenging the approach taken to calculate her holiday pay.
Mrs Brazel worked at the Trust as a music teacher in term-time on a zero-hours contract. She was entitled to 5.6 weeks' annual leave and was required to take the holiday outside of term time. Holiday pay was calculated pro rata to the proportion of the year worked, paying it at 12.07% of a term's pay (i.e. using the percentage reflecting 5.6/46.4 weeks). Mrs Brazel complained that this meant that she was being underpaid during her holiday. The Trust relied on ACAS Guidance that supported the principle of paying 12.07% (5.6 weeks divided by 46.4 weeks) of annual hours for casual employees.
The Employment Tribunal found in favour of the Trust, holding that taking any other approach would give the Claimant an unfair windfall because she did not work for the standard working year (52 weeks, less 5.6 weeks' statutory leave). To do otherwise would result in her receiving approximately 17.5% annualised hours as holiday pay, which was more than a comparable full time employee.
Questions we have been asked this month
Q. Is it possible to employ agency teachers to cover teaching staff who are going on strike?
A. It is not lawful to supply agency workers to perform the duties normally performed by an employee who is taking part in a strike. Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) prevents an employment business from supplying the employer with agency workers to perform the duties normally performed by a worker who is on strike or taking industrial action, or the duties normally performed by any other worker who has been assigned to cover the striking worker.