Harpur Trust (Appellant) v Brazel (Respondent)  UKSC 21 On appeal from:  EWCA Civ 1402
The appeal concerned the calculation of annual leave and holiday pay entitlements for workers who work for varying hours during certain weeks of the year but have a contract throughout that year.
The Respondent in the case is a music teacher at a school run by the Appellant. She works a variable number of hours each week and is only paid for the hours that she teaches during term time. The parties agreed that the Respondent was a “worker” within the meaning of the Working Time Regulations 1998, entitling her to 5.6 weeks of paid annual leave.
Prior to September 2011, the Respondent’s holiday pay for the 5.6 weeks was determined by calculating her average week’s pay in accordance with s224 of the Employment Rights Act (equivalent Art 20 in NI) and multiplying that by 5.6. A week’s pay for such persons, according to the legislation, is the average pay in the 12 week period ending with the start of their leave period, ignoring any weeks when they did not receive any pay. (The Calendar Week Method).
The Appellant had changed its method of calculation in September 2011 in line with ACAS guidance. It calculated the Respondent’s hours at the end of each term, took 12.07% of that figure and paid the Respondent her hourly rate for that number of hours as holiday pay (The Percentage Method). 12.07% being the proportion 5.6 weeks annual leave bears to the total working year of 46.4 weeks.
The effect of the change was that the Respondent received less holiday pay. She brought a claim before the employment tribunal for unlawful deduction of wages and her claim was dismissed. The EAT allowed the appeal, and held that the statutory regime required the use of the Calendar Week method.
The Court of Appeal dismissed an Appeal by the Trust which was also dismissed by the Supreme Court on 20th July 2022.
The joint judgment of Lady Arden and Lady Rose (to which Lords Hodge, Briggs and Burrows agreed) stated:
The Appellant argued that a part-year worker’s leave must be pro-rated to account for weeks not worked in order to enact the retained EU law Working Time Directive. The Appellant contended that the “conformity principle” arising from EU case law required that the amount of annual and (therefore holiday pay) should reflect the amount of work actually performed.
At paragraph 32 of the judgment, it was held that European law does not prevent a state from making a more generous provision than the “conformity principle.” The amount of annual leave to which a part-year worker under a permanent contract is entitled to is not required to be, and under domestic law must not be, pro-rated to be proportional to that of a full-time worker.
The court rejected the Appellant’s contention that the Calendar Week Method leads to an absurd result whereby a worker in the Respondent’s position received holiday pay representing a higher proportion of her annual pay than a full-time or part-time worker, working regular hours. At para 72 it stated that a slight favouring of workers with a highly atypical work pattern is not so absurd as to justify the wholesale revision of the statutory scheme.
For the full judgment click here