The Supreme Court has ruled that a part-year worker should not receive pro-rata holiday based on the number of weeks they work in a year and instead should receive the full statutory 5.6 weeks annual leave in any given year based on their working patterns the same as full year workers. Working patterns might be the number of hours worked per week if that is contracted, or an average of hours worked if these vary each week.
The ruling has been made following the much publicised case of The Harpur Trust v Brazel where Brazel only accumulated annual leave against hours worked during term time not a full year.
For example, a part-year worker who works 5 days a week for 8 hours a day (40 hours p/w) for 39 weeks per year is now entitled to the full 5.6 weeks’ (28 days’) annual leave per year inclusive of bank and public holidays the same as if they worked for the full year. It may have been worked out in the past that as that employee worked 40 hours a week for 39 weeks their holiday would have been worked as 12.07% of total hours worked over the year (1560 hours) which only equates to 23.5 days per year. The Employment Appeal Tribunal and now the Supreme Court have ruled that previous calculation is contrary to the Working Time Regulations.
Lesley Rennie, from Worknest has said “This ruling means many employers will need to immediately change their holiday pay practices. This includes those who employ permanent zero hours, ad hoc or term-time workers, and have applied the 12.07% formula to calculate holiday accrual and who have either waited for the finality provided by the Supreme Court’s decision or who have, up until now, been unaware of this case.”
This ruling does not change how you calculate holiday for permanent part-time workers which in some cases will mean part-year workers who work the same hours overall in any given year as a part-time full-year employee will receive more holiday per year.
Now we know the ruling is confirmed we expect to see stories of claims for back dated unlawful deduction of wages, which could be made for up to two years’ worth of unpaid holiday pay according to the calculations now required.
Fair? not really. Confusing? Definitely. A further costly headache for employers? Absolutely.
If you have part-year workers you should make sure you look at how you work out their holiday immediately, you may also need to update your contracts to ensure they are worded correctly.
You may even want to consider looking at and making changes to how you employee people. As employment law experts have commented, this surely cannot be what was intended when the Working Time Directive was drafted as it potentially creates unfairness for part-time workers who work full-year. It may also create a reluctance in employers to offer part-year contracts which results in less opportunities for working parents who are looking for this choice.
If you have any concerns about what this ruling means for you and what you need to do please do give us a call on 01275 757359 or email one of our team.
Do you have term-time only or part-year workers – important news!
The Supreme Court has today ruled that part year workers should not receive pro-rata holiday based on the number of weeks they work in a year and instead should receive the full statutory 5.6 weeks annual leave in any given year based on their working patterns the same as full year workers. Working patterns might be the number of hours worked per week if that is contracted, or an average of hours worked if these vary each week.
The ruling has been made following the much publicised case of The Harpur Trust v Brazel where Brazel only accumulated annual leave against hours worked during term time not a full year.
For example, a term time worker who works 5 days a week for 8 hours a day (40 hours p/w) for 39 weeks per year is now entitled to the full 5.6 weeks’ (28 days’) annual leave per year inclusive of bank and public holidays the same as if they worked for the full year. It may have been worked out in the past that as that a part-year worker worked 40 hours a week for 39 weeks their holiday would have been worked as 12.07% of total hours worked over the year (1560 hours) which only equates to 23.5 days per year. The Employment Appeal Tribunal and now the Supreme Court have ruled that previous calculation is contrary to the Working Time Regulations.
Lesley Rennie, from Worknest has said “This ruling means many employers will need to immediately change their holiday pay practices. This includes those who employ permanent zero hours, ad hoc or term-time workers, and have applied the 12.07% formula to calculate holiday accrual and who have either waited for the finality provided by the Supreme Court’s decision or who have, up until now, been unaware of this case.”
This ruling does not change how you calculate holiday for permanent part-time workers which in some cases will mean part-year workers who work the same hours overall in any given year as a part-time full-year employee will receive more holiday per year.
Now we know the ruling is confirmed we expect to see stories of claims for back dated unlawful deduction of wages, which could be made for up to two years’ worth of unpaid holiday pay according to the calculations now required.
Fair? not really. Confusing? Definitely. A further costly headache for employers? Absolutely.
If you have a part-year worker you should make sure you look at how you work out their holiday immediately, you may also need to update your contracts to ensure they are worded correctly.
You may even want to consider looking at and making changes to how you employee people. As employment law experts have commented, this surely cannot be what was intended when the Working Time Directive was drafted as it potentially creates unfairness for part-time workers who work full-year. It may also create a reluctance in employers to offer part-year contracts which results in less opportunities for working parents who are looking for this choice.
If you have any concerns about what this ruling means for you and what you need to do please do give us a call on 01275 757359 or email one of our team.