The Supreme Court Decision in Harpur Trust v Brazel is an important pronouncement on the holiday entitlements of atypical workers who, although engaged on permanent contracts, work only part of the year.


In this case the Plaintiff, Mrs Brazel, was a visiting Music Teacher and her contract of employment was one commonly described as “zero hours”.  In actual fact, she worked a variable number of hours during weeks in term time but on many weeks of the year she did not work at all.


The provisions of the Working Time Regulations provide that she, similar to any worker, is entitled to 5.6 weeks paid annual leave per year and in the case of Mrs Brazel she availed of her leave during the School holiday period.


Her employer had, prior to September 2011, determined her holiday pay by calculating her average week’s pay over a 12 week period and multiplying that 5.6.


However, in 2011 the employer moved away from that method of calculation and instead adopted a new method in which holiday pay was calculated on the basis of it amounting to 12.07% of hours worked.  In practical terms this resulted in Mrs Brazel being financially worse off and she brought a claim for unlawful deductions from pay, initially in the Employment Tribunal where her claim was dismissed.


She then appealed to the Employment Appeal Tribunal and the Court of Appeal both of which upheld her claim and that position has now been endorsed by the Supreme Court which brings the legal proceedings to an end.


In an important ruling, likely to have significant ramifications for many employers who employ part year workers, the Supreme Court held that holiday pay for such workers should be calculated using the averaging method, i.e. taking an average week’s pay over the year but importantly ignoring any weeks that have not been worked.


The employer had contended that this would result in what it considered an absurd outcome wherein part year workers (such as Mrs Brazel) would end up getting higher rates of holiday pay when compared with permanent full time workers. However, the Supreme Court was satisfied that the averaging method expressly set out and detailed in the Working Time Regulations was the appropriate method of calculating rates of holiday pay for a-typical workers and rejected the suggestion that a part year worker’s leave must be pro-rated to account for weeks not worked.


In its decision the Supreme Court held that it was not necessary for Mrs Brazel’s entitlements to annual leave to be predicated on the amount of work done nor that it should be proportional to the entitlement of a full time worker.


Significance was attached to the fact that the Working Time Regulations set out a specific statutory calculation method and the fact that this resulted in some anomalies as between the rate of holiday pay for a-typical workers as contrasted with the permanent counterparts was not an outcome which was so absurd that it could justify a substantial revision of the Working Time Regulations.