Part Year Workers

The Harpur Trust case involved a term-time only worker, who worked variable hours over certain weeks of the year.

A “part year worker” is, as yet, largely undefined; but we think that realistically the term “part-year worker” could apply to a whole host of arrangements, such as:

• Those who work variable shift patterns;
• Zero hours or casual employees;
• Certain zero-hours or casual workers.

The 12.07% method

Workers are entitled to a minimum of 5.6 weeks holiday per year.

A year is made of (roughly) 52 weeks which, once you take away 5.6 weeks, leaves 46.4 working weeks in a year. 5.6 is 12.07% of 46.4. 12.07% is therefore a worker’s entitlement to holiday expressed as a percentage of working time.

This works out as just over 7 minutes holiday entitlement for each hour worked.

The 12.07% method has been applied historically by employers to calculated holiday as a percentage of hours worked, paid at the worker’s normal hourly rate.

The 12.07% multiplier had been recommended in (now deleted) government guidance and an ACAS advice note, so many employers have been happily using that method to calculate holiday entitlement and pay.

The Harpur Trust v Brazel

Ms Brazel was a music teacher on a term-time only contract. She was entitled to 5.6 weeks of annual leave a year, which she took in three blocks of 1.87 weeks – taking a period of holiday in each of the winter, spring and summer school holidays.

Her employer, The Harpur Trust, adopted the 12.07% methodology when it came to paying her for holiday taken. Ms Brazel argued that was incorrect, and that instead she should have been paid at the rate of 1.87 x her average weekly pay for each period of holiday; which amounted to significantly more holiday pay than she received using the 12.07% methodology.

The Supreme Court agreed with Ms Brazel. There is no further legal recourse so it is clear that for permanent workers and employees who work part of the year, employers must not use the 12.07% method to calculate holiday entitlement or pay.

How to calculate holiday pay

Holiday entitlement and pay remains complex, particularly for atypical workers.

What this case has confirmed is how pay should be calculated for permanent workers/employees who only work part of the year (not to be confused with part-time employees):

• An employer should first calculate the average weekly pay in the 52-week period immediately prior to the period of holiday taken, ignoring weeks with no pay. This involves totalling pay received throughout the last 52 weeks in which work was performed (i.e. weeks in which no work was performed and no pay was received should be discounted) up to a maximum of 104 weeks, then dividing that total by 52;
• The weekly average should then form the basis of the calculation of holiday pay for that worker/employee.

What should employers do?

The Harpur Trust decision could result in claims for historic liability (looking back 2 years), so employers who have used the 12.07% method for part year workers should now stop using that method.

There a number of practical things that employers should now consider with regards to their part-year workers (note the distinction from part-time workers, where there has been no change):

• Whether to internally audit your staff base to identify part-year workers and potential liabilities – or indeed whether to ask for assistance with an audit from our expert Primed Team;
• Whether you can give permanence to the working arrangement. For example, if you have consistently offered a casual member of staff 20 hours a week for the last 6 months, it is likely that you have a need for that amount of hours to be fulfilled. Consequently, you could offer part-time permanent employment at 20 hours per week on a salaried basis;
• Whether to place casual / variable hours’ staff on permanent employment contracts or use zero hours worker contracts. A well-drafted zero-hours worker contract usually ensures that people are engaged to work during specific “assignment periods”; and that there is no relationship between the worker and the employer between assignment periods. This sort of arrangement might not fall within the “part-year worker” definition, and would allow pay for holiday accrued during the assignment period to be paid in lieu at the end of the assignment period (albeit it is likely that holiday pay would still have to be calculated using the 52 week average pay method).