In recent years, there have been notable developments in holiday pay regulations for supply teachers most notably the Supreme Courts decision (July 2022) in the case of Brazel v Harpur Trust. This ruling deemed the sector’s prevailing method of pro-rating holiday pay and entitlement for part-year workers as unlawful.

Before this landmark case, legislative guidance was lacking on the calculation of holiday pay and entitlement for such workers. Consequently, many educational institutions, among others, devised their own methodologies. For numerous schools, this involved pro-rating holiday pay at 12.07% of total hours worked.

Before the Brazel ruling, the practice of ‘rolling up’ holiday pay for casual workers was commonplace, despite earlier case law deeming it unlawful. However, the Brazel decision clarified that certain categories of workers, such as peripatetic music teachers, exam invigilators, and seasonal sports coaches, were entitled to the same holiday benefits as full-time staff. This revelation highlighted instances where casual workers, employed on permanent contracts, had been underpaid.

Following the Brazel judgment, the government initiated a consultation to gather perspectives on how holiday pay and entitlement should be determined for part-year workers. This consultation concluded in March 2023, with the announcement in November 2023 of forthcoming regulations to govern holiday pay and entitlement for this demographic.

Subsequently, the Employment Rights (Amendment, Revocation and Transitional Provisions) Regulations 2023, colloquially referred to as the “Regulations,” took effect on January 1, 2024. These regulations have introduced significant alterations to holiday pay legislation, particularly regarding the entitlement and calculation methods for certain workers.

Given the prevalence of part-year workers within the education sector, the implementation of these regulations holds considerable relevance for schools.

THE NEW RULES

The introduction of the Regulations effectively overturns the precedent set by the Brazel decision. Under these new regulations, workers who have irregular hours or work part of the year, as defined within the Regulations, will now accrue holiday entitlement at a rate of 12.07% of the hours worked, capped at a maximum of 28 days’ leave per year.

Furthermore, the Regulations mark the first instance of clear definitions for both ‘irregular hours’ and ‘part-year workers’. This clarification implies that certain staff members, such as those employed only during term time, may fall under these definitions, thus making the regulations applicable to them.

Additionally, the Regulations offer guidance on rounding up or down holiday entitlement fractions. For instance, if the calculated fraction of accrued annual leave amounts to less than 30 minutes, it should be treated as zero. However, if it equals or exceeds 30 minutes, it should be rounded up to one hour.

These changes are slated to take effect for holiday leave years commencing on April 1, 2024. For many educational institutions operating on a holiday year running from September 1 to August 31, adjustments to holiday pay or entitlement in line with the Regulations need not be implemented until the subsequent academic year.