Harpur Trust v Brazel [2022] UKSC 21 (20 July 2022)

Citation:Harpur Trust v Brazel [2022] UKSC 21 (20 July 2022).

Rule of thumb:How do you calculate working time holiday pay under UK employment law? For the purposes of holiday pay, when calculating the average number of hours an employee worked in a year, are weeks when the organisation was closed to be taken into account to bring the employee’s average number of weekly hours worked down? No, periods in the year when an organisation was closed are not to be taken into account when calculating the average number of hours an employee worked per week over the year. Brazel, a teaching assistant, was entitled to 5.6 weeks of holiday pay for the usual number of hours she worked in the school during term time which was 12.5 hours, and not the 10 hours’ she worked on average in the school over the course of the year taking into account times when the school was closed for holidays.

Background facts:

This case invoked the subject of employment law. It invoked the principle of holiday pay calculation method and how to work out the average number of hours an employee has worked per week when an organisation is closed for holiday periods.

The facts of this case were that Brazel was employed as a music teaching assistant with the Harper Trust Bedford school for girls. She was registered as a Harper Trust employee for the full 12 months of the calendar year. However, Brazel’s employment contract stated that she was only entitled to be paid for the hours she worked. Brazel worked on average between 12.5 hours per week during the 9 months when the school was open, and she was paid accordingly for these. A dispute arose over the amount of holiday pay Brazel was entitled to from the Harper Trust school. Schools are obviously closed for approximately 3 months holiday, and Brazel therefore worked zero hours during these 3 months. Brazel was not paid during these times of holidays as she worked no hours. Brazel was entitled to 5.6 weeks of paid holiday per year as she was an employee for the full year in the school. Brazel and the Harper Trust were however in dispute over how many hours she worked on average per year when working out her holiday pay.

The Harper Trust school argued that Brazel approximately worked 12.5 hours per week on average when she was working. However, the school was closed was for around 3 months per year. The Harper Trust School factored the 3 months the school was closed into the calculation and argued that this brought Brazel’s number of hours worked on average down to 10 hours per week. The Harper Trust only paid Brazel holiday pay of 10 hours per week for 5.6 weeks. The Harper Trust argued that they were following the method set out in The Employment Rights act 1996. The Harper Trust also provided many cases from EU employment law, which confirmed that this was the approach to be taken under the EU working time directive – the Harper Trust argued that the conformity principle meant the UK Court had to pass a Judgment in conformity with the EU case-law. Brazel argued that the Working Time Regulations 1998 (WTR) applied differently to this matter. Brazel argued that under the WTR the times when the school was closed should not be taken into account when calculating the average number of hours worked per week ie an employee could not be said to have only worked 0 hours if an organisation was closed. Brazel argued that she should be entitled to 12.5 hours per week of 5.6 weeks of holiday pay. Brazel argued that the 10 hour a week calculation was incorrect and in breach of the WTR.

Judgment:

The Court upheld the arguments of Brazel. The Court affirmed that marking an employee as working zero hours when the organisation was in fact closed was factually incorrect. The Court affirmed in these circumstances it was not fair to bring an employee’s average hourly rate down because the organisation was not open, and mark them as working zero hours when the school was technically closed as this was factually incorrect. The Court held that the calculation of 10 hours on average was in breach of the WTR. The Harper Trust were ordered to pay Brazel 5.6 weeks’ of holiday pay at the 12.5 hour approximate working week.

The Court affirmed that EU law passed pre-Brexit still continues to apply in the UK – it is just EU law in certain areas passed after the Brexit date that may not apply. The Court did affirm however that although the Harper Trust did interpret the EU law correctly, this EU law is just the base standard for UK law. The Court affirmed that for employment law the UK takes a gold-standard approach – EU law provides the outline, and the UK gold-plates this with higher standards in its regulations such as the WTR, meaning that the WTR applied.

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Ratio-decidendi:

‘… the calendar week method (not the actual 52 weeks method) represents the correct implementation of the WTR (working time regulations)…’, Lady Rose at 78

Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.