Harpur vs Brazel: Holiday pay confusion requires expert help

School leaders already wrestling with tight budgets, staff retention and burdensome admin have another HR headache with the ongoing confusion over the statutory holiday entitlement of zero hours and term-time only employees.

It results from the Harpur vs Brazel case heard by the Supreme Court last year. The court agreed that a school music teacher working during term time should have received the same entitlement to statutory holiday as staff working every week during the whole working year, finally ruling that all workers are entitled to 5.6 weeks statutory holiday, regardless of weeks worked.

However, the ruling gave rise to anomalies with workers with no fixed hours or working pattern particularly affected, it being possible to work only four weeks during a year and as a result be entitled to 5.6 weeks of statutory holiday.

The Government has now launched a consultation running until 9 March designed to remove such disparities with the aim of ensuring statutory holiday pay and leave entitlements are proportionate to the time staff work.

Confusing picture

Schools and Multi-Academy Trusts (MATs) that had begun to review their holiday practices and contracts and put adjustments in place to comply with the Supreme Court ruling, are now considering holding back to await the outcome of the consultation to see if the situation changes.

Those doing so must be aware that any existing liabilities will continue to be incurred until the law is changed.

It is a confusing picture for school and MAT senior leadership. In this context it is essential to have a HR and payroll service that is streamlined, flexible and responsive.

Strictly Education has a team of HR and payroll experts who are up to date on all the latest legislation and can help schools ensure that they are compliant from both perspectives, they know the law and they can make sure payroll implementation is set up to follow it.

Impact on education

The education sector is particularly exposed to the implications of the judgement.

The Government estimates that the court’s ruling means between 320,000 and 500,000 permanent term-time and zero-hours contract workers will receive more holiday entitlement. Approximately 37% of these are workers in the education sector, such as teaching assistants who are employed on part-year contracts.

“Over time, holiday pay and entitlement legislation has become complex and, in some cases, can be challenging for employers to follow due to changes in case law. There is a risk that in certain circumstances this legislation may not be fully achieving its original intention,” the Department for Business says.

Explaining why it had launched consultation to review the matter, it went on: “As a result of this [Supreme Court] judgement, part-year workers are now entitled to a larger holiday entitlement than part-time workers who work the same total number of hours across the year … The Government is keen to address this disparity to ensure that holiday pay and entitlement received by workers is proportionate to the time they spend working.”