Brazel v Harpur Trust

The Working Time Regulations should not be read down to impose a pro‑rata cap on statutory holiday pay so as to reduce the rights of part‑time or term‑time workers. Instead, where a worker has no normal hours, Employment Rights Act 1996 s.224 supplies the method for computing a week's pay. Part‑time protections aim to prevent less favourable treatment of part‑time workers, not to justify judicially reducing their statutory entitlements.

The claimant was a term‑time visiting music teacher engaged on variable hours. The employment tribunal accepted the employer's approach of paying 12.07% of hours as holiday pay and held that entitlement may be pro‑rated for those who work fewer than 46.4 weeks. The claimant appealed on the construction of the Working Time Regulations 1998 and the interaction with the Employment Rights Act 1996 and EU law. The EAT heard argument on whether words should be read into regulation 16(3)(d) to cap holiday pay and whether CJEU authority required pro‑rata treatment. The central issue was whether statutory provisions should be judicially amended or applied literally so as to use s.224 as the method of calculation.

(1) Appeal allowed. The Employment Tribunal's conclusion that regulation 16 should be read down so as to cap holiday pay at 12.07% for those working fewer than 46.4 weeks is not justified. The EAT will not read words into the Regulations to reduce statutory protection for part‑time workers.

(2) The correct starting point for computing holiday pay for workers with no normal hours is the formula in Employment Rights Act 1996 s.224. That provision permits averaging of pay over the relevant 12‑week period and should be applied as written.

(3) EU authorities cited (notably the CJEU decisions in Land Tirol and Greenfield) do not mandate pro‑rating in circumstances where there has been no change in work pattern giving rise to retrospective recalculation. Those cases are distinguishable on their facts and legal questions.

(4) The Part‑time Workers Regulations are directed at preventing less favourable treatment of part‑time workers. They do not authorise interpreting domestic legislation so as to reduce statutory entitlements in order to avoid possible perceived anomalies in outcomes between different working patterns.

(5) The EAT remitted the matter to the Employment Tribunal to compute sums due applying s.224 ERA and to give directions for any remedial hearing. The case may be returned to the same or differently constituted Tribunal for an essentially arithmetic exercise.

• Employment Appeal Tribunal: Allowed the claimant's appeal; remitted calculation to the Employment Tribunal for application of Employment Rights Act 1996 s.224.
• Employment Tribunal (Bury St Edmunds): Held that employer's 12.07% calculation was lawful and, alternatively, that the statutory entitlement could be pro‑rated (see Reasons sent 13 January 2017).