The Harpur Trust v Lesley Brazel
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Hamblen,Lord Justice Moylan |
| Judgment Date | 06 August 2019 |
| Neutral Citation | [2019] EWCA Civ 1402 |
| Date | 06 August 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/0825 |
and
[2019] EWCA Civ 1402
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Hamblen
and
Lord Justice Moylan
Case No: A2/2018/0825
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HH Judge Barklem
UKEAT/0102/17
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Caspar Glyn QC and Mr Nathan Roberts (instructed by VWV Solicitors) for the Appellant
Mr Lachlan Wilson and Mr Mathew Gullick (instructed by Hopkins Solicitors) for the Respondent
Mr Michael Ford QC and Mr Mathew Purchase (instructed by Shantha David, Unison Legal Services) for the Intervener
Hearing date: 2 May 2019
INTRODUCTION
The Claimant, who is the Respondent to this appeal, is a clarinet and saxophone teacher. She is employed by the Appellant (“the Trust”), which runs Bedford Girls School, as a “visiting music teacher”. That label means that she does not have a set number of working hours. The hours that she works in a given school term depend on the number of pupils requiring tuition in her instruments. In the periods which give rise to her claim she would typically give between twenty and thirty half-hour lessons per week. There are also some ancillary duties, for some but not all of which she is separately remunerated. She gives no lessons in the holidays and has no other substantial duties then. She is paid monthly on the basis of an agreed hourly rate applied to the hours worked in the previous month. The length of the school terms, taken together, varies from year to year: this can total as few as 32 weeks or as many as 35. For working purposes I will take a figure of 32.
I should make a couple of points about how the Claimant's employment is to be characterised, since labels in this area can be confusing:
(1) She is not a casual employee in the sense that she is employed only lesson-by-lesson or indeed term-by-term. On the contrary, she is employed under a permanent, in the sense of continuing, contract of employment, albeit one where the Trust is not obliged to provide a fixed minimum amount of work and pays only for the work done – in the jargon, a zero-hours contract. But she is in an equivalent position to a casual employee to the extent that the hours which she works, and which generate her entitlement to be paid, vary both from term to term and as between term-time and holidays.
(2) She can be described as a part-time employee, but it is important in the interests of clear analysis to appreciate that that is so in two distinct senses – first, that she does not work a full working week and, second, that for large parts of the year, i.e. the school holidays, she has no work (at least for the Trust) at all. It is the second sense that matters for the purpose of this case. There is (so far as I know) no ready-made label for that kind of part-time work: I will coin the terms “part-year worker” and, for its opposite, “full-year worker”. 1
Since the Claimant is a worker within the meaning of the Working Time Regulations 1998 (“the WTR”) she is entitled (subject to the issues considered below) to 5.6
weeks paid annual leave. Her contract of employment likewise says “you will be entitled to 5.6 weeks paid holiday”. Since the school holidays are far longer than that neither she nor the Trust have thought it necessary explicitly to designate any particular parts of them as statutory leave; but, by agreement, the Trust makes three equal payments in respect of her leave at the end of April, August and DecemberThe only issue now live is how the Claimant's payments in respect of annual leave pursuant to the WTR should be calculated. The Employment Tribunal adopted a method more favourable to the Trust, but on appeal the Employment Appeal Tribunal substituted a method more favourable to her.
The Trust has been represented before us by Mr Caspar Glyn QC, leading Mr Nathan Roberts, and the Claimant by Mr Lachlan Wilson, leading Mr Mathew Gullick. Both Mr Glyn and Mr Wilson appeared in both the ET and the EAT. Because the appeal raises an issue of general importance about the calculation of holiday pay 2 entitlement, the trade union UNISON has been given permission to intervene. It has been represented by Mr Michael Ford QC, leading Mr Mathew Purchase; and it was in fact Mr Ford who took the lead in supporting the decision of the EAT.
Mr Glyn was at pains in his submissions to say that notwithstanding this dispute the Claimant remains employed by the Trust and is a valued member of staff.
THE RELEVANT LEGISLATION
THE EU LEGISLATION
The WTR were originally made pursuant to the UK's obligations under the EU Working Time Directive (“the WTD”). The version of the WTD currently in force is 2003/88/EC, but this replaces an earlier directive, 93/104/EC, which had undergone various amendments. The provision of the WTD relating to annual leave is article 7 which reads:
“1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.”
It will be seen that article 7 does no more than set out the bare minimum requirements, detailed implementation being left to member states. There has, however, been a fair amount of case-law in the CJEU which identifies principles that such implementing legislation has to respect.
The only other article of the WTD to which I need refer is article 15, which provides that member states are entitled to make more favourable provision with regard to annual leave.
Article 31 of the EU Charter of Fundamental Rights also includes a provision that every worker has the right to “an annual period of paid leave”, but that adds nothing material for our purposes.
THE WORKING TIME REGULATIONS
I should note by way of preliminary that the WTR in their current form will be amended with effect from 6 April 2020 by the Employment Rights (Employment Particulars and Paid Annual Leave) Regulations 2018. None of the amendments directly impacts on any of the issues before us.
The key provisions of the WTR for our purposes are regulations 13, 13A and 16. Regulations 13 and 13A confer the right to annual leave and regulation 16 provides for the worker to be paid for that leave. Taken together, regulations 13 and 16 are the primary provisions intended to implement article 7 of the WTD; regulation 13A has a different source, as will appear.
The decision of the draftsman to split the requirements of article 7 out into the entitlement to leave and the entitlement to be paid recognises that the two rights, however inter-related, are analytically distinct. That has also been recognised by the CJEU in its consideration of article 7: see the case of Hein referred to at paras. 47–52 below. It is important in the interests of clear thinking to consider them separately.
Regulation 13 is headed “Entitlement to annual leave”. Paragraph (1) reads:
“Subject to paragraph (5), a worker is entitled to four weeks' annual leave in each leave year.”
“Leave year” is defined in paragraph (3), but nothing turns on that for our purposes. I should also set out paragraphs (5) and (9), which read as follows:
“(5) Where the date on which a worker's employment begins is later than the date on which (by virtue of a relevant agreement) his first leave year begins, the leave to which he is entitled to in that leave year is a proportion of the period applicable under paragraph (1) equal to the proportion of that leave year remaining on the date on which his employment begins.
…
(9) Leave to which a worker is entitled under this regulation may be taken in instalments, but –
(a) it may only be taken in the leave year in respect of which it is due, and
(b) it may not be replaced by a payment in lieu except where the worker's employment is terminated.”
The four-week entitlement under regulation 13 was supplemented, with effect from 1 October 2007, by a new regulation 13A conferring entitlement to “additional annual leave” expressed as amounting to “1.6 weeks”. This was intended to prevent bank holidays being counted against the statutory entitlement to annual leave: 1.6 weeks represents eight working days, there being eight bank holidays in a year. That purpose is also reflected in paragraph (3), which provides that the aggregate entitlement under regulations 13 and 13A is subject to a maximum of 28 days. Since the additional period of leave is not a requirement of EU law, the regulations which introduced regulation 13A – the Working Time (Amendment) Regulations 2007 – are made under powers conferred by the Work and Families Act 2006, whereas the remainder of the WTR are made under section 2 of the European Communities Act 1972.
I turn to regulation 16, which is headed “Payment in respect of periods of leave”. It reads, so far as material:
“(1) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulations 13 and 13A, at the rate of a week's pay in respect of each week of leave.
(2) Sections 221–224 of [the Employment Rights Act 1996] shall apply for the purpose of determining the amount of a week's pay for the purposes of this regulation, subject to the modification set out in paragraph (3).
(3) The provisions referred to in paragraph (2) shall apply—
(a) as if references to the employee were references to the worker;
(b) as if references to the employee's contract of employment were references to the worker's contract;
(c) as if the calculation date were...
To continue reading
Request your trial
-
The Harpur Trust v Lesley Brazel
...UKSC 21 before Lord Hodge, Deputy President Lord Briggs Lady Arden Lord Burrows Lady Rose Supreme Court Hilary Term On appeal from: [2019] EWCA Civ 1402 Appellant Caspar Glyn Nathan Roberts Catherine Meenan (Instructed by VWV Solicitors LLP (Bristol)) Respondent Mathew Gullick QC Lachlan Wi......
-
(1) Ms A Hayford (2) Mr K Biddle v P & O Ferries (Jersey) Ltd
...entitlement throughout their employment, not only in periods when they were working on the vessel. The reasoning in Harpur Trust v Brazel [2020] ICR 584 (CA) is applicable to (2) The Tribunal had rightly concluded (which was not challenged on appeal) that, given the number of weeks in which......
-
Ms C Potter v St Helens Borough Council: 2420116/2020
...under the Working Time Regulations 1998. The claimant relies on the decision made by the Court of Appeal in Harpur Trust v Brazel [2019] EWCA Civ 1402, which is the subject of an appeal to the Supreme Court due to be heard on 9 November Prior to presenting her claim, on 27 November 2020, th......
-
Ms A Duher v Magda Fun House Ltd: 3307974/2020
...The operation of holiday provisions for ‘part year’ workers, such claimant, was considered by the Court of Appeal in Harpur Trust v [2019] EWCA Civ 1402. Workers are entitled to be paid at the rate of a pay for each week of leave in accordance with sections 221-224 Employment Rights Act as ......
-
UK Employment Update January 2020
...and Calculator for Holiday Entitlement New government guidance has been published, following the decision in Harpur Trust v Brazel [2019] EWCA Civ 1402. The Court of Appeal has affirmed the Employment Appeal Tribunal's decision in Harpur Trust v Brazel [2019] EWCA Civ 1402 that holiday pay ......
-
What Is The Holiday Entitlement And Pay For Part-Year Workers?
...employees due to the outcome. In late 2019, we covered the Court of Appeal ruling on The Harpur Trust v Lesley Brazel & UNISON [2019] EWCA Civ 1402, which considered how holiday entitlement and pay should be calculated for part-year workers, working under permanent Following an appeal by th......
-
U.K. Employment Law Update: Holiday Pay for Part-Year Workers, Disclosures in the Public Interest and Vegetarianism as a Philosophical Belief
...for Part-Year Workers In Harpur Trust v Brazel [2019] EWCA Civ 1402, the Court of Appeal considered how the holiday pay of a part-year worker should be Ms Brazel was employed as a visiting music teacher by the Harpur Trust on a permanent, zero-hours contract. She mainly worked during term t......
-
Holiday Pay Entitlement For Part-Year Employees Not A Simple 12.07% Of Hours Worked
...the recent case of Harpur Trust v. Brazel [2019] EWCA Civ 1402, the Court of Appeal considered whether the holiday entitlement of a permanent employee who worked only part of the year should be prorated to that of a full-year Legal position The statutory minimum holiday entitlement for all ......