UNISON today secured a victory at the Court of Appeal affecting hundreds of thousands of employees working part-time and irregular hours or patterns.
Harpur Trust v Brazel & UNISON clarifies the legal position ensuring all workers are entitled to a minimum of 28 days paid annual leave, even if they do not get given work or paid for parts of the year. In addition, this leave must be paid at the rate of a normal week’s pay, or based on the average payment for the preceding 12 weeks if pay is irregular.
UNISON intervened in this appeal, which was being defended by music teacher Mrs Lesley Brazel and brought by Harpur Trust, her term-time employer. The trust claimed she was entitled to leave and pay below the statutory minimum.
The position of leave for hourly-paid workers in the education sector, who are not paid a salary during school holidays, has been unclear due to the absence of government guidance or definitive case law on their holiday rights.
Although Mrs Brazel is not a member of UNISON, the union was concerned about the wider implications of the case and how it would affect hundreds of thousands of part-time workers and those working on irregular hours. It applied to intervene in November 2018.
UNISON general secretary Dave Prentis said: “UNISON intervened because this case was about all workers being treated fairly and would have an impact across the whole of the UK.
“Staff in schools are often required under contract to be at school outside term time, and, like Mrs Brazel, are required to do additional unpaid duties beyond those periods. It’s right that they should be paid the same minimum statutory entitlement of 28 days annual leave like everyone else.”
UNISON legal officer Shantha David, who acted for UNISON, said: “We’re extremely pleased that the Court of Appeal considered and accepted UNISON’s argument.
“The government’s failure to provide guidance in this area has left workers in limbo. The courts have once again had to step in to stop the abuse of workers and to fix what legislation should have made clear from the outset.”
A link to the judgement will be available here.
Notes to Editors
– Members of UNISON’s legal team are available for interview.
– In 2011, the Harpur Trust decided casual and term-time staff should be paid an annual leave allowance of 12.07%. The 12.07% figure was calculated using the 5.6 weeks holiday, divided by 46.4 weeks (which is 52 weeks – 5.6 weeks). The 5.6 weeks are excluded from the calculation as the worker would not be at work during that time in order to accrue annual leave. As Mrs Brazel worked 32 weeks, they said she was entitled to 3.86 weeks of leave (19.3 days, or 32/46.4 x 5.6 weeks). Therefore it said each day’s leave would be paid at the rate of 12.07% of her pay.
– In March 2015 the Claimant presented a complaint in the Employment Tribunal for unlawful deductions from her wages by underpayment of her entitlement to holiday pay
– On 15 January 2017 an Employment Tribunal at Bury St Edmunds dismissed her claim. It held that the application of a figure of 12.07% to either the length of the holiday entitlement or to what it described as the claimant’s “average pay over the course of the working year of 46.4 weeks” would give her proportionately the same holiday-pay entitlement as a full-year worker.
– On 6 March 2018, following an appeal to the Employment Appeal Tribunal, Judge Barklem allowed the appeal and said she was entitled to the full 28 days (5.6 weeks) under the Working Time Regulations on the basis of a full week’s pay calculated in accordance with sections 221 to 224 of the Employment Rights Act 1996. The Harpur Trust applied to the Court of Appeal for permission to appeal.
– In November 2018, UNISON applied to intervene in this matter as it was concerned about the effect that this appeal would have on hundreds of thousands of part-time workers and those working on irregular hours.
– Today’s judgement means that all workers are entitled to a minimum of 28 days annual leave under statute, and this should be paid at the rate of a week’s pay (and if this is irregular, then the average over the previous 12 weeks).
– UNISON has had a number of important and high-profile legal victories. This decision comes two years after UNISON’s successful challenge at the Supreme Court overturning the imposition of legal fees at employment tribunals and earlier this year the Court of Appeal agreed that regular overtime should be included when calculating holiday pay.