Calculating Holidays for Zero hours Term-time only workers
Calculating holiday entitlements for part-time workers causes headaches for many employers and accountants – but calculating them for those who only work part-time and are made to take their leave outside of term-time can be even more confusing. A new Employment Appeal Tribunal ruling has addressed the situation.
One part-time music teacher had queried the way in which her entitlement and pay had been calculated and took her employer, The Harpur Trust to tribunal. Mrs Brazel had worked on a zero-hours contract for Bedford Girls’ School during term times. In June 2011 the school told Mrs Brazel that it was going to revise the method it was using for paying peripatetic music teachers and that it would use base it on the number of lessons and hours worked each month. Clearly some months there would be fewer lessons because of the school holidays. They were going to use the 12.07% figure set out by Acas for calculating the statutory minimum for those working irregular hours.
However, this percentage is calculated for employees who are engaged for 52 weeks per year – not those who work term-time only because otherwise employees would get a greater percentage of their pay for annual leave. Mrs Brazel argued that she should get the equivalent of 5.6 weeks as set out in the Employment Rights Act, rather than the 12.07% calculation. The initial tribunal agreed with the employer’s position, but Mrs Brazel took her case to appeal and won.
The EAT said that there was legislation that protected part-time workers giving them the right to be treated no less favourably than full-time workers. Conversely there is no legislation to protect full-time employees from being treated less favourably than part-time employees. This means that if a calculation appears to favour a part-time employee, there is no legislation to rule against that situation.
If this has confused you, basically it means that if you have people working part-time on term-time only contracts, they should get the equivalent of 5.6 weeks of leave per year, and that the amount to be paid should be the average of the previous 12 weeks (excluding any weeks where no work is done, i.e. outside of term time.)
Posted on 27 Mar 2018