Harpur Trust -v- Brazel

Thursday, August 25th, 2022

For Claimants everywhere, Christmas has come early, says Aidan Loy, Legal Director of C4J.

This week, the Supreme Court delivered its verdict on the above case (transcript attached) in the no-nonsense phraseology of Lord Underhill. Briefly, it dealt with the perennial difficulty of calculating holiday pay for those who work for only periods of the year, although they may have worked for the same employer for years. In investigating this, the Supreme Court has arrived at the surprising – but nevertheless logical and legally accurate – view that legislators have never specifically dealt with the issue of pro-rata awards of pay, although the issue of pro-rating actual holiday time has long been settled.

Briefly, the ‘Brazel’ of the case was a school music teacher engaged throughout the year by an Academy to give music lessons on agreed days and dates. As she did not work the full year, and was also granted generous holiday periods, the parties agreed that her pro-rata holiday allowance was about 50% of that of a full-time worker, working 40 hours over a 5 day week. This method of calculating holiday accrual for part-time workers (of many different kinds) has long been used. But Ms Brazel hit upon an apparent anomaly in the Working Time Regulations (WTR) and the Working Time Directive (WTD) as well as domestic law in the UK and throughout the EU. Briefly, as a worker, she was entitled to the value of her annual leave entitlement quite separately from the leave to which she was entitled. So, although it was agreed she might have 3 weeks off, as the legislation is silent on payment for this, other than that she must be remunerated for her annual allowance – previously in the UK 5.6 weeks but now specified as 48 days. So irrespective of how much holiday she was granted (15 working days) she must be remunerated for the full allowance. The Court speculated that, if new contracts were not correctly drafted then, for example, an invigilator hired annually for a week (or a day) will now qualify for payment for the full holiday allowance.

Commentators are waxing about an ‘anomaly’ or a new ‘loophole’ which must be corrected. They are quite wrong, and the Supreme Court has ruled. The commentators have forgotten their very first lesson on their very first day at Law School: the law is not necessarily logical, nor is it what you would wish it to be; the Law is what it is. Amusingly, Unison, which supported the case, have completely misunderstood the ruling and are stating that their members can now look forward to more paid holiday. They clearly can’t, but they can look forward to more pay for holiday, whether or not they are contracted for it.

So anyone claiming for historic holiday pay can now substantially increase that claim. Trebles all round!