The Harpur Trust v Brazel [2019] EWCA Civ 1402

Appeal against an EAT decision that calculated a part year worker's holiday entitlement as 5.6 weeks was dismissed.

The Claimant was employed all year round on a permanent contract but she was only paid for work done and for large parts of the year, i.e. the school holidays, she had no work (at least for the Trust) at all. She typically worked 32 weeks a year (although this varied) over 3 terms. Her holiday entitlement was calculated by the Trust that employed her in accordance with a method recommended by ACAS in its guidance booklet Holidays and Holiday Pay for calculating the pay of casual workers. The Trust calculated the Claimant's earnings at the end of each term and payed her one-third of 12.07% (i.e. 5.6 divided by (52 - 46.4) multiplied by 100) of that figure. The Claimant argued at the ET that that method bears no relation to the calculation required by the WTR and produces a lower figure than taking the average weekly remuneration for the twelve weeks prior to the calculation date and then, by virtue of regulations 13 and 13A, multiplying it by 5.6. She argued that there is nothing in the relevant provisions requiring a different approach where the worker does not work a full year. The ET disagreed but this was overturned by the EAT (click here. The Trust appealed.

The Court of Appeal dismissed the appeal. Despite the fact that the Claimant's method would result in her holiday entitlement being equivalent to 17.5% of her earnings, and could lead to a bizarre result (e.g. a person working just 1 week a year could claim 5.6 week's holiday) on any natural construction the WTR make no provision for pro-rating. They simply require, as the Claimant says, the straightforward exercise of identifying a week's pay in accordance with the provisions of sections 221-224 and multiplying that figure by 5.6.

Published: 06/08/2019 16:14

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