Court of Appeal dismisses holiday pay case in support of teacher


The Court of Appeal has dismissed a case brought forward by the Harpur Trust on behalf of Bedford Girls School concerning the holiday pay of a music teacher on a zero-hours contract.

The court, which issued its judgment on Monday 6 August 2019, confirmed that staff employed on a zero-hours contract, who may not work or be paid for certain parts of the year, are still entitled to receive a minimum of 28 days’ paid annual leave. This must be paid at the same rate as a normal week’s wages or be based on the average payment for the preceding 12 weeks, if pay is irregular.

The case, The Harpur Trust v Brazel and Unison, concerns clarinet and saxophone teacher Lesley Brazel, employed on a zero-hours contract at Bedford Girls School. Brazel’s working hours are dependent on the number of pupils requiring her tutelage during term time; her typical working hours, therefore, are estimated to be between 20 and 30 half-hour lessons each week.

In March 2015, Brazel presented a complaint in the Employment Tribunal (ET) for unlawful deduction from her wages by underpayment of her entitlement to holiday pay. This followed a change in casual and term-time employees’ annual leave allowance at the Harpur Trust in 2011, which stipulated that these individuals should receive an annual leave allowance of 12.07%. This was calculated using the 5.6 weeks’ holiday entitlement stated on staff members’ employment contract, divided by 46.4 weeks. Brazel, who works 32 weeks, was informed that she was therefore entitled to 3.86 weeks of annual leave, with each day paid at 12.07% of her salary.

In January 2017, the ET at Bury St Edmunds dismissed Brazel’s claim, citing that the above-mentioned calculation would award Brazel with proportionately the same holiday pay entitlement as a full-year employee.

However, the Employment Appeal Tribunal (EAT) allowed Brazel’s appeal against the ET’s decision in March 2018; the judge stated that under the European Union’s (EU) working time regulations, Brazel would be entitled to 28 days of paid annual leave, in accordance with Sections 221 to 224 of the Employment Rights Act 1996.

Following this ruling, The Court of Appeal explored whether Brazel should receive less than her holiday entitlement, to reflect the fact that she does not work throughout the year. The Court, however, rejected the Harpur Trust’s case, finding that the working time regulations do not enable pro-rating in this fashion.

Lord Justice Underhill, who led the proceedings, stated in the judgment: “The [working time regulations] do not provide for the kind of pro-rating for which the [Harpur] Trust argues, and which underlies the application of the 12.07% formula in the case of a part-year worker.”

Shantha David, legal officer at Unison, added: “The government’s failure to provide guidance in this area has left [employees] in limbo. The courts have once again had to step in to stop the abuse of [staff] and to fix what legislation should have made clear from the outset.”