Holiday Pay and Term Time Workers

Holiday Pay and Term Time Workers

Almost all workers are legally entitled to 5.6 weeks' paid holiday a year. This includes agency workers; workers with irregular ours and workers on zero-hours contracts.

The Court of Appeal in The Harpur Trust v Brazel have held that a Term Time employee's holiday entitlement should be calculated based on an average of the hours worked in the previous twelve weeks and it should not be pro-rated.  

The Claimant was a music teacher on a term-time contract. She was working irregular hours over the school period. The Trust were calculating her holiday entitlement in accordance with a method recommended by ACAS in its guidance booklet 'Holidays and Holiday Pay'. The Claimant argued that this method conflicts with the calculation required by the Working Time Regulation ('WTR') and actually produced a lower figure than taking the average weekly remuneration for the twelve weeks prior to the calculation date as required in Regulation 13 and 13A.

The Court of Appeal rejected the Trust's argument that a pro-rata principal should be applied for the accrual of leave for Term Time employees. EU law does not require this and it was not necessary to apply a pro rata principle under the WTR. The Employment Appeals Tribunal held that her holiday entitlement should be calculated based on a twelve-week average, making her holiday pay around 17.5% of her annual pay, rather than 12.07% which was received by staff who were working throughout the entire year.

Employers should be mindful that calculating holiday pay for employees who only work during term time is not always straightforward.

If you have any questions or would like further clarity on your employees' holiday entitlements please do not hesitate to contact a member of our Employment Law Team.