Schools may have to review holiday pay and face claims from permanent part-year workers after a Supreme Court ruling concluded a long-running case between a music teacher and the academy trust at which she worked.
The Harpur Trust changed the way it calculated the holiday pay of Lesley Brazel - one of its music teachers - in 2011, which reduced her pay packet.
Ms Brazel works for a variable number of hours each week and is only paid for the hours she teaches.
Before 2011, her holiday pay was calculated using her average week’s pay and multiplying it by 5.6, but then this was changed to be prorated based on the number of weeks she worked each year.
Ms Brazel initially had her claim for unlawful deductions turned down by the Employment Tribunal, but had an appeal accepted. The Court of Appeal then rejected a counter-appeal from the trust, and a further appeal has been dismissed by the Supreme Court today.
Ramifications for thousands of workers
Unions and legal experts have said the ruling would have “ramifications” for thousands of workers.
Unison, which represents school support staff, said it meant all workers would be due the same legal minimum of 5.6 weeks holiday pay (28 days for full-time employees), even if there are months during the year when they do not work.
The union’s general secretary, Christina McAnea, said: “This important decision means that anyone, no matter when or how they work, will now be due the same legal minimum of annual holiday.
“Teaching assistants or other education employees might only be contracted to work when schools are open, but they’re also sometimes required to do their jobs at other times.
“Today’s decision clarifies the law and says that annual leave taken by someone who works less than a full year can no longer be pro-rated to that of a colleague employed all year round.”
Deborah Annetts, chief executive of the Incorporated Society of Musicians, of which Ms Brazel is a member, said: “This is a landmark decision from the Supreme Court and is likely to have ramifications for thousands of workers. Many of those will be in low-paid and insecure jobs.”
Why did Ms Brazel bring the case?
Before September 2011, Ms Brazel’s holiday pay for the 5.6 weeks was determined by calculating her average week’s pay and multiplying that by 5.6. It ignored any weeks in which she did not receive any pay.
From September 2011, however, the Harpur Trust changed its calculation method. In line with Advisory, Conciliation and Arbitration Service guidance, which has now been rewritten, they calculated Ms Brazel’s hours worked at the end of each term, took 12.07 per cent of that figure and then paid Ms Brazel her hourly rate for that number of hours as holiday pay.
This is because 12.07 per cent is the proportion that 5.6 weeks of annual leave bears to the total working year of 46.4 weeks. The Harpur Trust therefore treated Ms Brazel as entitled to 12.07 per cent of her pay for the term, reflecting only the hours she actually worked.
This meant she received less holiday pay.
The Harper Trust’s appeal dismissed
The Supreme Court said it “unanimously dismisses” The Harper Trust’s appeal.
Anne Pritam, a partner at Stephenson Harwood’s employment practice said the ruling would have ”far-reaching ramifications”, not just in the education sphere.
She added: “We can expect to see the floodgates open for permanent part-year workers to bring claims for unlawful deduction of wages if their holiday entitlement has previously been pro-rated”
“Employers are likely to see increased costs going forward as they will need to change their approach and review their holiday policies and practices. We can expect to see many employers reassess the use of permanent contracts for casual workers, given the increased costs that will be incurred”.
A spokesperson for The Harpur Trust said: “We accept the judgement of the Supreme Court. The ruling will have significant cost implications for a number of sectors, including state and independent schools, the care sector and higher education. We welcome the clarity that this judgement brings and will now focus on determining our next steps in ensuring that holiday pay is adjusted for those affected.”
