Holiday Pay for Term Time Workers

Shiva Shadi, Partner and Head of Employment at Davis Blank Furniss

The case of Brazel –v- Harper Trust involved a visiting Music Teacher who appealed to the EAT in relation to the manner in which her holiday pay was calculated.

She worked on a term time only basis on a Zero Hour Contract.  The school calculated her holiday pay on a pro rata basis to the proportion of the year worked, paying it at 12.07% of a terms pay.

On a working year of 32 – 35 weeks, this resulted in a lower figure than if calculated on the basis set out in the Employment Rights Act of taking a 12 week average of pay from weeks actually worked and ignoring the out of term weeks.

The EAT held that basing holiday pay on the 12 week average was the correct approach.

On this calculation, an employee who works on a “32 week year” would have a percentage of 17.5% rather than 12.07%.

Whilst this means a windfall in a way for part time workers, it is unavoidable.

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