Harpur Trust V Brazel

Music teacher Lesley Brazel’s legal victory of Harpur Trust V Brazel, transforms holiday rights for all workers

Unison supported legal victory secures new holiday rights for all workers in the Harpur Trust V Brazel case.

All workers in the UK will now receive the same minimum level of paid annual holiday leave, regardless of how many hours they work, following a landmark legal judgment by the Supreme Court today (Wednesday 20th July 2022).

The case, Harpur Trust v Brazel & UNISON, was taken by music teacher Lesley Brazel. She argued her employer was wrong to give her fewer days of annual leave than the legal minimum because she only worked during the school term.

UNISON got involved in the Brazel case because of its implications for thousands of school staff employed on term-time only contracts. The situation had previously been confused because of the absence of any government guidance on their holiday rights, says UNISON.

Thanks to the judgment, it will no longer be possible for employers to argue staff who don’t work all year are only entitled to holiday based on the hours they work. Today’s decision is also good news for anyone working irregular hours or on zero-hours contracts, says the union.

From now on, all workers will be due the same legal minimum of 5.6 weeks (28 days for full-time employees), even if there are months during the year when they don’t work. The Supreme Court judgment upholds a previous decision taken by the Court of Appeal in 2019.

What is the potential impact of the Harpur Trust v Brazel Term Time Holiday Pay Ruling?

The Harpur Trust v Brazel focuses on the issue of whether a worker’s right to paid annual leave is accumulated according to their working pattern and/or should be pro-rated to reflect the fact that they don’t work for a full year.

The Harpur Trust employed Ms Brazel on a zero hour’s permanent contract to teach music. Her contract provided her with 5.6 weeks’ paid holiday, which had to be taken outside normal school holidays.

The Trust argued however that it could pro-rate her holiday entitlement and pay to reflect the fact that she worked fewer weeks per year than comparable full time staff and to do otherwise would lead to an “absurd result”.

Ms Brazel brought proceedings arguing that this was in breach of the Working Time Regulations and Part-time workers (Prevention of Less Favourable Treatment) Regulations.

She was initially unsuccessful, but the Court of Appeal concluded that workers engaged on permanent part-year contracts must receive at least 5.6 weeks holiday – even if they only worked for one or two weeks a year. This was on the basis that holiday could not be pro-rated because the Working Time Regulations 1998 do not include a pro-rata principle in these circumstances.

Today the Supreme Court unanimously dismissed the school’s appeal. It acknowledged that EU case law indicates that, in general, a worker’s minimum holiday allowance is determined by the number of weeks they actually work. However, there is nothing to stop individual countries having more generous provisions. Under UK law, holiday pay for people working irregular hours is determined by averaging their pay over the previous 52 weeks. Weeks where no work takes place are ignored in the calculations.

The Court acknowledged this approach slightly favoured workers, like Ms Brazel, who work atypical hours, but it did not agree that this produced such an absurd result that would justify the wholesale revision of the statutory scheme.

The long-awaited decision has been closely monitored by organisations in the public and private sectors. Many unions have been actively pursuing holiday claims on behalf of term-time only staff. In 2018, Unison helped 5,000 term-time staff employed by Greenwich Council receive compensation for unpaid holiday amounting to almost £4m. Unison also intervened in this case because the principles involved affect hundreds of thousands of other workers.

Unison has highlighted that the ruling means that all workers in the UK will now receive the same minimum level of paid annual holiday leave, regardless of how many hours they work, following a landmark legal judgment by the Supreme Court today (Wednesday 20th July 2022).

The case, Harpur Trust v Brazel was taken by music teacher Lesley Brazel. She argued her employer was wrong to give her fewer days of annual leave than the legal minimum because she only worked during the school term.

Unison continued to explain that due to the judgment from today, it will no longer be possible for employers to argue staff who don’t work all year are only entitled to holiday based on the hours they work.

According to employment lawyers at Irwin Mitchell, the ruling will have significant financial repercussions for thousands of employers with people working part of the year on permanent contracts who have pro-rated their holiday entitlement to reflect the number of weeks they actually work each year. It will be particularly significant in the education sector where term-time contracts are commonplace.

Watch our trailer about the ruling here: