Hot on the heels of the PSNI holiday pay case in Northern Ireland comes another twist in the continuing and highly litigated area of holiday pay. The Court of Appeal in England and Wales have delivered their decision in The Harper Trust v Brazel. This case concerned the method of calculating pay for workers who only worked part of the year.

In this instance the Claimant was a music teacher who was only employed in term time and worked variable hours dependent on pupil demand. The employer had always calculated holiday pay as 12.07% of the total time worked in the year. The Court of Appeal decided that ‘part-year’ workers were distinct from part-time workers and there was “no requirement as a matter of EU law to give effect to the pro-rata principle or, more particularly, to pro-rate the entitlement of part-year workers to that of full-year workers.”

The Court stated that calculating holiday pay in the circumstances of ‘part-year workers’ was a ‘straightforward exercise’ of identifying a week’s pay and multiplying that by 5.6. In this case the entitlement of the part-year worker was calculated as an average of their pay over the 12-week reference period and subsequently multiplied by the 5.6 weeks entitlement.

Although this creates greater entitlement for part-year workers, it is clear that both the Employment Appeals Tribunals and the Court of Appeal were unwilling to accept that there was a legal requirement to pro-rate ‘part-year’ work. Although most employers may not employ ‘part-year’ workers, those who do will need to reassess how much entitlement and pay their employees receive in respect of annual leave.

It is also worth noting that the recent and hugely significant decision of Agnew v PSNI in Northern Ireland has now been appealed to the Supreme Court and we await confirmation of the progress of this appeal.

If anyone has any queries on the application of holiday pay, please don’t hesitate to contact one of the team members of Willis Employment Services.

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