Brazel v The Harpur Trust UKEAT/0102/17/LA

Appeal against the ET decision that the Claimant, who worked on a zero-hours contract, had suffered unlawful deductions from her wages because of the way in which the Respondent had calculated her holiday pay. Appeal allowed.

The Claimant was on a zero-hours contract and worked as a music teacher during term times only. She worked between 32 and 35 weeks per year and her contract said that she was entitled to 5.6 weeks holiday per year (the statutory minimum). The Respondent calculated her holiday pay, not by applying s224 ERA (i.e. averaging out the last 12 weeks pay to find a normal week's pay and multiplying this by 5.6) but by pro-rating the 5.6 weeks such that she was paid 12.07% (i.e. 5.6 x 100/46.4) for each week actually worked. This contrasted with the way in which she said she should be paid (i.e. 5.6 x 100/32) which would equate to 17.5% for each week actually worked. The ET agreed with the Respondent and the Claimant appealed.

The EAT allowed the appeal. There is nothing in the ERA that says how term-time workers' holiday should be calculated but there was also no basis on which words could be inserted into the WTR so as to cap the holiday pay of a worker who worked fewer than 46.4 weeks per year to 12.07%. The Part-time Workers Regulations 2000 have as their overriding principle the concept that part-time workers are not to be treated less favourably than full-time workers. There is no principle to the opposite effect, and thus no basis for the judicial amendment of a statutory scheme, the provisions of which are unambiguous.

http://www.bailii.org/eu/cases/EUECJ/2010/C48608.html

Published: 09/03/2018 10:26

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