Myth-busting Brazel: tips for the education sector

Back in November, we attended the ISBA Conference alongside many HR professionals from independent schools. It was great to see so many of you and, as it’s been a busy year for the education sector, we had plenty to chat about.

Undoubtedly, one of the biggest areas of concern for HR professionals was the impact of Harpur Trust v Brazel on holiday entitlement and pay. It’s a complex case and there are a number of different approaches out there being suggested by professional advisors.

And, whilst it was great to hear about how you are grappling with the practical and legal elements of the case, there were a few misconceptions that we heard we’d like to address:

We can ignore the Brazel judgment because it only apples to permanent staff who don’t work regular hours

Answer: incorrect.

Explanation: although much of the focus was on how to properly calculate holiday pay for workers who don’t have fixed hours of work, the case also set out an important principle that applies to a wider group of workers. That is all term-time workers on continuous contracts, including those who have fixed hours of work, must receive at least 5.6 weeks holiday each year. Employers can’t pro-rate this to reflect the number of weeks they work each year. This means that term-time staff will get proportionally more holiday than full-time colleagues.

It is fine to pro-rate the entire holiday entitlement of term-time workers as long as they receive at least 5.6 weeks’ leave

Answer: it might be, but that point hasn’t been tested in the courts and if you adopt that approach you may face legal claims under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The least risky approach is to ‘ring fence’ 5.6 weeks holiday and pro-rate any additional leave to reflect the number of weeks worked by a term-time worker.

Explanation: the Brazel judgment applies to the requirement to provide 5.6 weeks statutory holiday under the Working Time Regulations. It doesn’t address what approach employers should take if they provide additional contractual holiday to their staff.

If you elect to restrict paid holiday to term-time staff to 5.6 weeks (or pro-rate all holiday) but offer more generous terms to full-time staff, you may breach the Part-time Workers Regs. These regulations only apply if the term-time worker can identify a comparable full-time worker who receives additional holiday. An example would be a term-time teacher who only receives 5.6 weeks paid holiday, whereas a full-time teacher receives seven weeks paid holiday.

Claims under the Part-time Worker Regs carry a potentially higher liability as, unlike in claims under the Working Time Regulations, the compensation can be backdated with no limit. 

We’ve reconsidered how we calculate holiday entitlement and pay and are just going to inform staff about these changes

Answer: this is a change to their terms and conditions of employment and there are a number of steps you need to consider first including deciding if you need to collectively consult. This is necessary where the changes you intend to make impact 20 or more employees. It also applies whether or not you recognise a trade union for collective bargaining purposes.

You will also need to update the holiday clauses in their contracts of employment. This may trigger the obligation to update the contracts more generally in order to comply with the additional requirements which came into force in April 2020.  

We can help 

We have a lot of experience of advising on this issue and are helping lots of schools and colleges comply with the Brazel judgment. We can help you:

• review your holiday pay calculations to ensure they are compliant
• suggest strategies to minimise your liability for historic underpayments
• look at ways to reduce your on-going holiday pay costs
• provide contractual wording to comply with Brazel
• help you to liaise with unions or employee representatives to make changes to the terms and conditions of affected staff

Please contact out part-year holiday and education specialists Jenny Arrowsmith, Helen Dyke, Charlotte Sloan, or Siobhan Mulrey to find out how we can help you.

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