A number of our clients have asked us if the Court of Appeal’s decision in Brazel v The Harpur Trust is likely to be appealed.
That case decided that a teacher engaged on a term time only contract was entitled to 5.6 weeks holiday per year, even though she did not work for the whole year. The court said that this was a minimum requirement and it couldn't be pro-rated to reflect the number of weeks she actually worked. Nor, could the employer apply the 12.07% 'formula' for working out her holiday entitlement.
The decision applies to employees engaged under permanent contracts of employment who work for part of the year such as term time only employees and those engaged under variable hours or zero hours contracts and has far reaching implications for many employers, particularly those in the education and care sectors.
An appeal has been lodged
We've made some enquiries and understand that the Harpur Trust have made an application for permission to appeal against the decision. This application was made to the Court of Appeal Justices who heard the case. There is no specific deadline for this – but the application has to made promptly because, if it is turned down, the appealing party only has 28 days to appeal direct to the Supreme Court from the date of the original judgment.
We don’t know yet if the Court of Appeal have granted permission for the Harpur Trust to appeal against its decision. If they refused, the Harpur Trust had until 4 September to appeal to the Supreme Court for permission to appeal.
It may take a few weeks before we know the outcome of those applications. Employers will therefore need to decide whether to sit tight and wait and see what happens or make changes now.
Need more help?
We've published answers to the most frequently asked questions about calculating the holiday entitlement of part year workers and can help you draft appropriate clauses for your contracts that comply with the Brazel decision.
If you have questions that are we've not already addressed, please contact holiday pay expert Jo Moseley for help and advice.