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If there is one question that confuses employers quite frequently, it would have to be working out unusual holiday entitlement.

What is unusual?
Well, imagine you have an employee who works irregular hours. Or a casual ‘as and when’ worker. Imagine if they leave part of the way through the leave year.

There has been another case that gives us confirmation about working out unusual holiday entitlement. In Brazel v The Harpur Trust the Claimant was a music teacher working only school term times. She had to take her holiday outside of term time. She was paid for accrued holiday entitlement three times a year.

This all sounds quite standard so far, but the employer calculated the entitlement by working out 12.07% of her working hours. This is where the employer came unstuck.

The figure of 12.07% comes from guidance from ACAS stating that 5.6 weeks is the equivalent of 12.07% of hours worked over a whole year for a full-time worker. But there is statutory guidance that trumps the guidance from ACAS.

What the employer should have done was work out the average of her working hours in the preceding 12 weeks. Holiday pay is then based on the average week’s pay over that period. This is how the Working Time Regulations and Employment Rights Act tell us to make this calculation. When the correct calculation was used, the Claimant’s holiday entitlement was greater and therefore her holiday pay increased.

She made a successful claim in which the Employment Tribunal held that an employee on a permanent contract who works part-time is entitled to the statutory minimum of 5.6 weeks holiday. This should be calculated using the 12-week average as set out in the Working Time Regulations.

The employer appealed this judgment but the Court of Appeal rejected the appeal. This makes the case an important one to consider when working out unusual holiday entitlement. Of course, if you need any help or guidance on this, just give us a call and we will see how we can assist.


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