Brazel v Harpur Trust

A worker with no normal working hours is entitled to paid annual leave calculated under the clear statutory scheme. A week’s pay is the average weekly remuneration over the statutory reference period. There is no general principle requiring the 5.6-week entitlement to be reduced for a worker who works fewer weeks each year.

The non-discrimination regime for part-time workers protects them against less favourable treatment. It does not justify reading a cap or pro-rating requirement into Working Time Regulations 1998 or Employment Rights Act 1996 provisions which are unambiguous.

The Claimant was a visiting music teacher working under a zero-hours contract, mainly during school terms. Her contract provided for 5.6 weeks’ paid annual leave. The Respondent paid holiday pay at 12.07% of hours worked, rather than by calculating a week’s pay under section 224 of the Employment Rights Act 1996.

The Employment Tribunal rejected her unlawful-deduction claim. It held that regulation 16(3)(d) of the Working Time Regulations 1998 should be read as capping holiday pay for workers who worked fewer than 46.4 weeks a year, or alternatively that the 5.6-week entitlement should be pro-rated. The Claimant appealed on the statutory holiday-pay issue.

1. Appeal allowed. The Tribunal erred in adding words to regulation 16(3)(d) of the Working Time Regulations 1998 and in alternatively pro-rating the Claimant’s 5.6-week entitlement. The statutory provisions were unambiguous and supplied the applicable method.

2. Regulation 16 required payment at the rate of a week’s pay for each week of annual leave. As the Claimant had no normal working hours, section 224 of the Employment Rights Act 1996 calculated that sum by her average weekly remuneration over the relevant 12-week period. That calculation applied directly.

3. The authorities on pro rata temporis did not establish a general rule reducing leave or holiday pay for workers who work fewer weeks in a year. Land Tirol and Greenfield concerned changes between different work patterns. They did not support a cap designed to prevent what the employer regarded as a windfall for term-time workers.

4. The statutory and European regimes were directed to preventing less favourable treatment of part-time workers. The pro rata definition in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 was confined to those Regulations. It did not create a free-standing principle permitting primary legislation to be read down to a part-time worker’s disadvantage.

5. The case was remitted for computation under section 224. If the resulting sum exceeded the payments made, there would, subject to any live limitation issue, have been an unlawful deduction from wages. Remaining live matters were left for directions and a remedies hearing.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal and remitted the matter for computation under section 224 of the Employment Rights Act 1996.
• Employment Tribunal, Bury St Edmunds: In written reasons sent on 13 January 2017, dismissed the unlawful-deduction claim and upheld the 12.07% calculation.