This, as well as the use of the 12.07% multiplier as a way of meeting holiday pay entitlement, is what the Court of Appeal considered in a case that has far reaching implications across many sectors.
Mrs Brazel is employed as a music teacher on a permanent contract. She works term time only and her hours of work are dictated by pupil demand. Her hours and pay vary according to this.
She wasn't required to work in school holiday periods and she was paid in respect of her holiday pay three times a year at the start of each of the main holiday periods. The employer calculated this based on hours worked by Mrs Brazel in the preceding term and using the multiplier of 12.07%.
12.07% is a methodology suggested by ACAS in their guidance Holidays and Holiday Pay. All workers are entitled under the Working Time Regulations 1998 to 5.6 weeks' paid leave in each year. The 12.07% methodology equates to 5.6 weeks holiday/46.4 working weeks (so pro-rating from a full time 52 weeks per year contract).
The argument before the courts was whether the use of 12.07% met the requirements of UK legislation as set out within the Working Time Regulations.
The Working Time Regulations state that all workers are entitled to 5.6 weeks' leave each year. Although the European Directive from which the UK rights were implemented would allow some form of pro-rating (as has been established in European case law), that had not been expressly adopted in the UK Working Time regulations.
Accordingly, the argument put forward by Mrs Brazel was that she should be entitled to 5.6 weeks' leave a year even though she only worked during term time.
Mrs Brazel also argued that because she had no normal working hours, the amount she should be paid for her holiday should be calculated by averaging her pay over the 12 weeks actually worked immediately prior to the relevant holiday being taken (discounting any weeks where there was no pay at all), rather than using the 12.07% multiplier.
The Court of Appeal agreed with Mrs Brazel that technically this was the case. This means that someone who is employed under a permanent contract but only works for part of the year should receive the same holiday entitlement as an individual who works all year round.
They also receive a proportionately higher rate of pay for their holiday than full year workers.
This judgement potentially affects:
If the Harpur Trust is granted leave to appeal to the Supreme Court and is successful, it is possible that the pro-rata principle could be re-instated in terms of how the entitlement to holiday and holiday pay under the WTR is interpreted. It may be some time before this is determined and in the meantime the Court of Appeal decision is binding.