By Jack Khurana
Senior Associate Solicitor
HOLIDAY pay and how to calculate it for employees and workers has been a thorny subject for employers and the courts alike for a number of years now.
For full-time employees or workers, it's relatively straightforward - 5.6 weeks each year including Bank and statutory holidays. The calculation may need to include such things as overtime, bonuses, commission etc., which is what the recent case law states.
If you consider part-time employees or workers, then among employers, the tribunals and even ACAS, the generally accepted position is to pro rata the annual entitlement, depending on the part time employee or worker's working pattern.
So, by way of example, if an employee works three days a week on a permanent contract, then the pro rata leave entitlement is calculated as three fifths of the annual entitlement.
However, employers are now faced with another factor to take into account when calculating holiday entitlement and pay - with the recent introduction of the concept of the 'part-year' worker, as distinct from the 'part time' worker.
The highly respected Lord Justices in the Court of Appeal have created this latest category of employee or worker in the case of The Harper Trust v Brazel. A part year worker refers to someone on a permanent contract working part of the week for part of the year.
Ms Brazel, employed by the Harpur Trust on a zero hours contract, claimed that she was disadvantaged financially as a result of the change of method of calculating her holiday pay; a method recommended by ACAS.
She was a visiting music teacher at Bedford Girls School, and it was the school that adopted this recommended method of calculating her holiday pay.
Ms Brazel, however, argued that the method of calculation should be in line with the Working Time Regulations, and the Court of Appeal agreed with her.
The court agreed that these regulations do not require annual leave and pay to be reduced pro rata for employees or workers like Mrs Brazel, meaning that she will receive over five per cent more than employees working the whole year.
FG Solicitors are experts in all areas of employment law and HR so if you think you might be affected by this latest development, give us a call on 0808 172 9322 for a no obligation discussion.