Term-time update November 2019

UNISON has always argued that holiday entitlement for term-time workers suffers from a lack of legal clarity.

This is because they are required to work during term-time weeks for about 39 weeks, and are required to take their holiday entitlement, which they are paid for, only during school closure. Term-timers are in continuous employment, unable to claim out-of-work benefits but able to claim in-work benefits.

As we have informed you, the Council has not correctly calculated your annual leave. Instead your holiday entitlement has been understated for some time, because it has not been correctly pro-rated, meaning that your entitlement and therefore pay for that leave is less than what it should be.

In addition, the case of Brazel & UNISON v the Harper Trust has identified that all employees that work part-time or term-time (part year) are entitled to a minimum of 5.6 weeks of annual leave. Each of these weeks has to be paid at the rate at which you would be paid for a normal week of work (e.g. your hourly rate (based on your grade) times the number of hours you work.) In some cases staff receive retainer pay or a special needs allowance, which should form part of the weekly calculations for holiday pay.

UNISON is seeking to pursue claims on behalf of our members in these situations. UNISON is also looking at inequality as a factor in the St Helens claim. We will communicate any further news, or the next stage of the legal process, whichever comes first!


An excerpt from an article in ‘Personnel Today’ August 2019 (Top 10 Questions)

Question 1 ‘How should an employer calculate a term-time
worker’s paid holiday?’

There is no specific legislation setting out how to calculate holiday pay for term-time workers. Employers must ensure that the paid holiday of term-time workers is not less favourable than that of full-time workers (as this would be unlawful under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551)). Employers must also ensure that term-time workers receive at least the statutory minimum entitlement of 5.6 weeks’ paid
annual leave a year.

The employer can designate periods during the school holidays to be the term-time worker’s annual leave and pay holiday pay in instalments over the year.

Where a term-time worker has regular hours during term time and their salary is paid in equal instalments over the year, to ensure that they are receiving the minimum statutory paid holiday, the employer can add 5.6 weeks on to the number of weeks the employee is contracted to work during the year, before averaging their pay out into equal instalments. For example, for an employee who is contracted to work 39 weeks a year, the pay that is averaged over the year must be based on at least 44.6 weeks of work.

For term-time workers without regular hours, the employer can still pay holiday pay in instalments over the year (for example, monthly or at the end of each term) ensuring that it amounts to at least 5.6 weeks’ pay. In Harpur Trust v Brazel & UNISON [2019] IRLR 1012 CA, the Court of Appeal held that the holiday entitlement of term-time workers should not be pro rated to that of full-year workers. The calculation of a week’s pay for term-time workers with irregular hours should be based on the average hours worked during the 12 weeks before the calculation date, not counting weeks in which no pay was due (s.224 of the Employment Rights Act 1996).

Term-time workers are entitled to 5.6 weeks’ paid holiday, even if this works out more favourably than comparable full-time workers when calculated as a proportion of the actual number of days worked during the year.

In Harpur Trust, the employer had based its holiday pay calculation on 12.07% of the employee’s hours each term, following ACAS guidance relating to casual workers. This was found to result in the employee receiving less than 5.6 weeks’ holiday per year.


Simon Rice-Birchall, a partner in the Employment Team at Eversheds Sutherland said the judgement provided much needed clarification for employers calculating holiday pay for irregular workers who do not work the entire year.

‘Although the sums involved are typically small, capping holiday pay at 12.07% is standard practice in some sectors, making this decision of broader importance. Employers will need to adjust their calculations in the light of this case and should anticipate requests for unpaid holiday back pay from those affected’

https://www.personneltoday.com/hr/holiday-pay-part-year-workers-harpur-trust-v-brazel (accessed 11/12/19)

Statement of Particulars for Employment

Thank you to the many members who have supplied the personal information we requested which included – payslips, Contract of Employments, any variation letters and Statement of Particulars. It has been a Mammoth task that you have responded well to.

! IMPORTANT NOTICE !

Unfortunately a number of members have reported that they had not received a ‘Statement of Particulars’, either when they commenced employment or when they requested a copy from St Helens Council, due to a variety of reasons.

If you are one of those members, please can you make contact with the branch separately either via email or telephone as we would like to speak to you.

Many thanks again!


 

HAVE YOU REGISTERED YOUR INTEREST IN THE TERM-TIME LEGAL CASE?

The branch have held several evening meetings to get the message across; circulated quite a few Newsletters; posted Notices on our website; and telephoned and written letters to members identified as potential term-time workers.

If you are one of the members who have not responded yet, NOW IS THE TIME TO ACT!

If you have completed the Legal Case Form – Thank You!

Please speak to your colleagues to ensure they don’t miss out…