U-turn on Harpur v Brazel… How nuts is that?

As we all know, last year the Supreme Court in Brazel v Harpur Trust said that all workers on permanent or continuous contracts must receive 5.6 weeks paid holiday each year, even if they only worked for part of the year. Meaning that part-year workers are entitled to a larger holiday entitlement than part-time workers who work the same total number of hours across the year. This posed a number of problems, not least in relation to term-time only staff and casual workers, such as exam invigilators.

The government believes the outcome in Brazel is unfair (they are not alone!). So, the government intends to amend the Working Time Regulations to allow employers to pro-rata a worker's holiday entitlement to reflect the number of days/weeks they actually work each year. It promises to make the law easier to understand and implement – we shall see…

The government launched a consultation on the matter, which closed on 9 March 2023. Depending on the outcome, new legislation could be feasibly introduced before the end of this year.

The proposed change is to introduce a 52 week holiday reference period for part-year workers and those with irregular hours and will allow employers to use a mathematical short-cut to work out their entitlement based on 12.07% of the number of hours they work. Sound familiar?

JP view: If implemented, employers will have to:

• Calculate total hours worked in previous 52 weeks including weeks not worked; and 
• Multiply total hours worked by 12.07% to give the worker's total annual statutory entitlement in hours.

Hours worked in previous 52 weeks x 12.07% = annual statutory entitlement in hours

The same answer is also reached by dividing the total hours worked by 46.4 and multiply by 5.6 - the education sector’s method of choice. 

So, one step backwards and two steps forwards it would seem. It is possible that we may see new legislation on this before the end of the year. Let’s hope so.