Although part-time workers cannot be treated less favourably than full timers, the Employment Appeal Tribunal (EAT) has held in Brazel v The Harpur Trust that there is no principle to the opposite effect. As such, the Trust could not justify capping holiday pay for a part-time teacher just because it would mean that her holiday pay would be more favourable than that of a full timer.
Basic facts
Ms Brazel, a part-time music teacher, was employed on a zero hours contract under which she was entitled to 5.6 weeks annual leave which she had to take outside term time. As the holiday entitlement of 5.6 weeks is equivalent to 12.07 per cent of hours worked over a year (5.6 weeks divided by 46.4 weeks), the school calculated her holiday pay entitlement on the basis of 12.07 per cent of her total pay over a year.
Ms Brazel argued, however, that her holiday pay should be calculated using the methodology set out in section 224 Employment Rights Act (ERA) 1996. This states that the holiday pay of a worker who works irregular hours during each week of the year should be calculated on the basis of their average earnings over a 12-week period immediately before the leave is taken. This would work out at 17.5 per cent for each week worked in the case of Ms Brazel, instead of 12.07 per cent.
Relying on Acas guidance, the Trust argued that that entitlement to holiday pay should be based on the number of weeks actually worked as a proportion of 46.4 weeks (52 minus 5.6 weeks of leave) because otherwise teachers who worked fewer weeks during the school year would benefit more than those who worked the full number of weeks.
Tribunal decision
The tribunal agreed with the Trust that the holiday pay calculation should be capped at 12.07 per cent in order to ensure that full-time employees were not treated less favourably than part timers who worked fewer than 46.4 weeks per year, and/or to avoid a "windfall" for term-time only workers.
It therefore agreed with the Trust that section 16 of the Working Time Regulations (WTR) relating to payment in respect of any period of leave should be amended accordingly to include the 12.07 per cent cap.
EAT decision
The EAT overturned that decision. Although the Part-Time Workers Regulations 2000 have as their overriding principle the concept that part-time workers are not to be treated less favourably than full-time workers, there was no principle to the opposite effect.
The exercise that the tribunal was required to carry out was, said the EAT, “a relatively simple one”. Ms Brazel’s entitlement to holiday pay (which mirrored her statutory right) was set out clearly in her contract. As someone working irregular hours, the straightforward application of section 224 of the Employment Rights Act 1996 enabled a week's pay to be computed in a simple and straightforward manner
Although the EAT’s decision had the effect of favouring a worker who does not work throughout the year, it could not see how that justified words being read into the WTR given that the provisions were unambiguous.