Last reviewed 27 July 2022

A music teacher at a school run by the Harpur Trust works a variable number of hours each week and is only paid for the hours that she teaches during term time.

As a “worker” within the meaning of the Working Time Regulations (WTR) 1998, she is entitled to 5.6 weeks of paid annual leave which is taken during the school holidays. However, as she is not required to work at all during the school holidays, in practice there are more than 5.6 weeks each year in which she does not work at all.

From September 2011, the trust began using a different method of calculating her holiday pay (the Percentage Method) which was in line with Acas guidance (since re-written).

The effect was to reduce the teacher’s holiday pay and she eventually brought a claim before the Employment Tribunal for unlawful deductions from her wages by underpayment of holiday pay. This was dismissed but the Employment Appeal Tribunal (EAT) allowed her appeal holding that the statutory regime required the use of what is known as the Calendar Week Method.

The Court of Appeal then dismissed the Harpur Trust’s appeal.

Harpur Trust (Appellants) v Brazel (Respondent) has now reached the Supreme Court with the full (32-page) judgment available at here.

The Court has unanimously dismissed the trust’s appeal.

The trust had argued that the WTR were enacted in part to implement the EU Working Time Directive which remains “retained EU law” following Brexit so it must apply the “conformity principle” arising from the EU case law on the Directive.

According to the trust, this principle requires that the amount of annual leave (and therefore holiday pay) should reflect the amount of work that the teacher actually performs.

The Supreme Court concluded, however, that European law does not prevent a State from making a more generous provision than the “conformity principle” would produce. The amount of leave to which a part–year worker under a permanent contract is entitled is therefore not required to be, and under domestic law must not be, pro-rated to be proportional to that of a full-time worker.

Comment by Kate Palmer, HR Advice and Consultancy Director at Peninsula

The Supreme Court judgment may come as a huge blow to employers with zero-hours, variable-hours or term-time only staff, since it means holiday leave can no longer be pro-rated to the number of weeks per year they work.

Instead, all workers must get at least 5.6 weeks’ paid annual leave. From this, employers will likely face significantly higher outgoings for holiday pay.

They will also need to update existing policies and procedures, train HR and payroll staff to process holiday in line with the judgment and communicate any changes to the affected workforce.