Can an employer pro-rata holiday pay for a part-year teacher who is employed on a term-by-term basis? “No” confirmed the Court of Appeal in Brazel v The Harpur Trust. The Working Time Regulations 1998 (WTR) provide workers with the right to 5.6 weeks’ paid annual leave under Regs 13 and 13A. Reg 16 WTR requires a worker to be paid at the rate of a week’s pay in respect of each week of leave calculated in accordance with Ss. 221 to 224 of the Employment Rights Act 1996 (ERA). The employer paid B three times per year in respect of her holiday pay. The employer argued that as 5.6 weeks constitutes 12.07% of a working year, B’s holiday pay should be calculated based on 12.07% of her earnings during the previous term. B argued that this resulted in an underpayment. Under the calculation required by the ERA, the average earnings for a worker with no normal working hours over the preceding 12 weeks in her position equated to 17.5% of her earnings. The CA rejected the employer’s argument. The WTR make no provision for pro-rating. They simply require a straightforward exercise of identifying a week’s pay in accordance with Ss. 221-224 ERA and multiplying that figure by 5.6. Trying to build in a pro-rating requirement or an accrual system would be substituting an entirely different scheme.
Holiday pay calculation cannot be pro-rated for a term-time worker
Article by: Makbool Javaid |