The Employment Appeal Tribunal (EAT) has ruled that a part-time school music teacher was entitled to her full statutory 5.6 weeks of holiday pay, rather than a pro-rata calculation, despite working fewer hours than colleagues.
In a judgment published on 6 March, employers were reminded that they must not treat part-time workers less favourably than full-time workers, even if this leads to employees who work fewer hours earning more than full-time employees.
Mrs L Brazel had been employed with education support charity The Harpur Trust since September 2002. She had worked part time as a music teacher at Bedford Girls’ School from September 2011 and was employed on a zero-hours contract, working primarily during term time.
In June 2011, the school alerted Brazel to the fact that it would be revising its method for paying ‘visiting music teachers’, proposing that pay would be based on the number of lessons provided and the hours worked each month.
The school acknowledged that this change “might result in a fluctuating monthly payment depending on [the] number [of] the lessons taught in a particular month”.
“It was recognised that January, May, August and September were likely to be lower as they are periods when fewer lessons are taught. Payments received in the other months would be correspondingly higher. As a result, it was proposed that accrued holiday payments would be made in those quieter months,” the judgment stated.
Brazel’s contract allowed for 5.6 weeks of holiday pay, in line with her statutory entitlement, but The Harpur Trust argued that, as she worked during fewer weeks than a ‘standard’ 46.6 week working year, her holiday leave should be pro-rated.
Instead of calculating the basis for holiday pay by the method set out in the Employment Rights Act 1996, the trust calculated it on the basis of 12.07 per cent of her total annual pay.
It said her entitlement was based on the number of weeks worked, and this was at 12.07 per cent of her salary.
According to Acas guidelines, if a member of staff works on a casual basis or very irregular hours, it is often easiest to calculate holiday entitlement that accrues as hours are worked.
The holiday entitlement of 5.6 weeks is equivalent to 12.07 per cent of hours worked over a year. “The 12.07 per cent figure is 5.6 weeks’ holiday, divided by 46.4 weeks; 5.6 weeks are excluded from the calculation as the worker would not be at work during those 5.6 weeks in order to accrue annual leave,” Acas advises.
Under this computation, Brazel would earn 17.5 per cent of her salary in holiday pay, as school holidays meant she only worked 32 weeks of the year, compared to full-time employees who worked a 46.4 week working year and earned 12.07 per cent in holiday pay.
Brazel lodged a claim at Bury St Edmunds Employment Tribunal in 2017, claiming she was entitled to 5.6 weeks of holiday pay under her contract, and had therefore been underpaid a total of £1,360.72 under the pro-rata system.
But the tribunal ruled that there was no unlawful deduction of wages as a result of the application of a 12.07 per cent calculation of Brazel’s paid annual leave.
It found that The Harpur Trust was right that to allocate statutory leave to part-time workers was unfair to members of staff who worked the full number of weeks per year.
The tribunal upheld that a principle of pro-rating should apply. It also said that the statutory scheme by which a week’s pay was computed should mean that holiday payment – for part-time workers who work fewer than 46.4 weeks per year – is capped at 12.07 per cent of annualised hours.
Brazel successfully appealed that decision at the EAT in October 2017. She said the Working Time Directive had incorporated the fact that part-time workers are employed for fewer weeks than full-time workers into its mechanism.
She also argued that the overriding principle of the Part-time Workers (Prevention of less favourable treatment) Regulations 2000 is that a part-time worker has the right not to be treated less favourably by his employer than a comparable full-time worker.
The EAT upheld Brazel’s appeal in March 2018, finding that: “The Part-time Workers Regulations 2000 have as their the overriding principle the concept that part-time workers are not to be treated less favourably than full-time workers.”
“There is no principle to the opposite effect” and therefore he could not amend statute, ”the provisions of which are unambiguous”, said presiding judge Martyn Barklem.
He added that while the sums in this claim were small, “the subject matter of this appeal will potentially affect many visiting music teachers and, similarly, many schools that employ them. It is, therefore, a point of some importance.
“I am unable to distill [...] any support for the proposition accepted by the employment tribunal that there is a requirement to carry out an exercise in pro-rating in the case of part-time employees, so as to ensure that full-time employees are not treated less favourably, or to avoid a ‘windfall’ for term time-only workers.
“The whole purpose of the EU and domestic provisions to which I have referred in this judgment is to ensure that part-time workers are not treated in a less favourable manner than full-time workers.”
Barry Stanton, Boyes Turner’s head of employment law, told People Management that employers should be aware that there is no legislation preventing full-time employees from being treated less favourably than part-time employees.
“The EAT has firmly stated that the primary legislation must be followed, even if it does lead to full-time employees being treated less favourably, as in this case.
“Part-time workers must not be treated less favourably than their full-time counterparts. When dealing with part-time workers, employers should always consider whether how they are being treated results in any form of less favourable treatment or whether they are being disadvantaged as a result of their part-time status.
“But this case makes it clear that there is no automatic inverse right for full-time workers to not be disadvantaged compared to part-time colleagues.”