Holiday pay: Court of Appeal rules in part-time teacher’s favour

Wiseman Admin2019, Employment LawLeave a Comment

The Court of Appeal has upheld a ruling stating that a part-time teacher’s holiday pay was wrongly calculated.

The ruling stated that remuneration should be calculated over a 12-week period, rather than the standard pro-rate system that is generally used by employers.

L Brazel works as a visiting music teacher at Bedford Girls’ School and is employed by the Harpur Trust, which runs the school.

Her employer argued that a pro-rata formula was the routine way to calculate holiday pay, but the court ruled that her pay should be decided over a 12-week reference period.

Brazel did not have a set number of hours, effectively working on a zero-hours contract, with her hours determined by the number of pupils requesting tuition at the beginning of each school term.

She did not work holidays but crucially was employed under a permanent contract.

The trust used the method recommended by The Advisory, Conciliation and Arbitration Service (ACAS) to calculate Brazel’s holiday as 12.07 per cent of the total hours worked, which was calculated by dividing the number of working weeks by the statutory holiday entitlement of 5.6 weeks.

But Brazel argued that the Working Time Directive (WTD) stated that pay should be determined by taking a week’s pay (using an average of weekly pay for the 12 weeks prior to the date of calculation) and multiplying it by 5.6.

The Judge ruled that there was nothing stated in the provisions that meant a different approach must be taken if a worker did not work the full year.

The case was initially dismissed by an employment tribunal in 2017, before the Employment Appeal Tribunal upheld the appeal, stating that there were no grounds for deviating from the WTD rules.

The trust then challenged this ruling, but the Court of Appeal has now dismissed this appeal.

Lord Justice Underhill, stated: “On any natural construction, the [Working Time Rules] make no provision for pro-rating. They simply require, as the claimant says, the straightforward exercise of identifying a week’s pay in accordance with the provisions of sections 221-224 and multiplying that figure by 5.6.”

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