Term-time only workers – Harpur Trust -v- Brazel and the implications for schools & academy trusts

The Supreme Court has handed down a landmark judgment in the case of Harpur Trust –v- Brazel. This is a long-awaited judgement that will have implications for schools and academy trusts. 

Background 

The case itself dates back to 2017 when Mrs Brazel, a term-time-only employee, brought a complaint to the Employment Tribunal for unlawful deductions of wages due to the underpayment of her entitlement to holiday pay. Mrs Brazel was employed on a zero-hours permanent contract and her holiday pay was calculated on a pro-rata basis to that of a full-time employee. Mrs Brazel submitted to the tribunal that her holiday pay should have been calculated using her average earnings over a 12-week period (the Calendar Method). Mrs Brazel brought proceedings on the basis that the Harpur Trust’s calculation was in breach of the Working Time Regulations 1998 (WTR) and the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. This would mean that she should have received the same holiday pay as a full-time member of staff who worked all year round.  

Her complaint was dismissed by the tribunal who ruled that the Harpur Trust had applied the correct method of calculating holiday pay. This decision was subsequently appealed by Mrs Brazel. The Employment Appeal Tribunal consequently upheld Mrs Brazel’s appeal and found that her holiday pay had been miscalculated by the Harpur Trust. 

In turn, this decision by the EAT was appealed by the Harpur Trust. The Harpur Trust made the appeal on the basis that alternative calculation methods were appropriate and not in contravention of the WTR. They argued that holiday pay could be calculated on a pro-rata basis to reflect the fact that a part-year employee worked fewer weeks a year compared to a full-year member of staff. The Court of Appeal dismissed the Harpur Trust’s appeal. In 2019 the Trust was granted leave to appeal to the Supreme Court, from which this judgment stems. 

Supreme Court decision

The Supreme Court dismissed the Harpur Trust’s appeal and upheld the decision of the EAT and the Court of Appeal. This means that holiday pay for term-time-only staff must meet at least the statutory minimum entitlement under the WTR despite the fact that they do not work all year round.

What does this mean in practice for schools and academy trusts?

The practice of calculating holiday pay on a pro-rata basis is common practice across the education sector and often implemented by local authorities. The Harpur case related to a member of peripatetic teaching staff, however, a wide variety of employees including teaching assistants, cleaning, facilities and admin staff may also be on similar part-year contracts and potentially entitled to a revised holiday pay calculation.

Going forward, schools and trusts must ensure that the calculation they use to calculate holiday pay for term-time staff is correct and we would encourage a full review of the calculation used.

Furthermore, many schools and academy trusts will already be aware of the issue having had complaints brought against them in the Employment Tribunal which were stayed subject to the outcome of this case. With the Supreme Court’s judgment, the best option for most school and academy trusts will be to seek to resolve such claims through negotiation rather than through protracted and expensive litigation. For those who have not yet received claims, it is now time to assess whether the trust is exposed to any liability and determine whether any back-payments for historic holiday pay are necessary.

If you are affected by any issues in this article, please feel free to contact us.