What about the Supreme Court?

The law relating to paid holiday entitlement really ought to be quite straightforward. Yet time and again it gives rise to some of the most complicated legal cases.

Harpur Trust v Brazel - what’s it all about?

Lesley Brazel was a music teacher. She was engaged under a ‘zero hours’ contract, with her working time varying from week to week. Indeed, some weeks, she was not required to do any work at all, such as during school holidays. 

In order to satisfy her statutory entitlement to paid holiday, at the end of each term, Harpur Trust looked at how much work she had done in the preceding term and made a payment of holiday pay equal to 12.07% of the pay she had received. In many cases, this practice of paying a figure equal to 12.07% of pay received results in a good approximation of the holiday pay due under the Working Time Regulations 1998 (WTR). The problem is that in some cases, it will not completely satisfy the strict statutory requirements. Certainly, Ms Brazel did not think it worked in her case.

What was the problem? 

The big problem with Ms Brazel’s case was that she did not work every week.  In particular, she did not work during school holiday periods. The approach adopted by the Harpur Trust effectively took account of this and reduced her holiday pay entitlement accordingly. Yet under the WTR, when calculating a person's average weekly pay for holiday pay purposes, weeks in which the employee has not done any work are meant to be ignored. This meant that if one applied the method set out in the WTR, oddly, Ms Brazel would end up receiving more generous holiday pay than someone with more predictable hours of work.  

When this case came before the Employment Tribunal back in January 2017, the Employment Judge sided with the employer and found that Ms Brazel’s holiday pay ought to be reduced to take account of the weeks during which she was not required to work. However, both the Employment Appeal Tribunal and the Court of Appeal disagreed, siding with Ms Brazel instead.

What about the Supreme Court?

When five Supreme Court justices listened to arguments from lawyers on both sides (and from those appointed by Unison), they acknowledged that the case advanced by Ms Brazel would result in her receiving a proportionately higher amount of holiday pay than other workers with more predictable hours. Nevertheless, applying the WTR as currently drafted, Ms Brazel’s interpretation of the law was correct. As a result the Harpur Trust’s appeal was unsuccessful once again.

What have we learned?

This decision is a valuable reminder that holiday pay calculations can be fiendishly complicated. Using the 12.07% method can often result in employers arriving at a reasonably accurate approximation of the statutory holiday pay entitlement due to some casual workers.  However, this will not always be the case and the risks associated with getting things wrong need to be factored in.

If you are facing some tricky holiday pay calculations, please get in touch and let us help you navigate the problem.