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The Harpur Trust v Brazil Court of Appeal judgment - has anyone changed their term time calculation???

Alison

| 0 Posts

17 Sep, 2019 12:28

Just wondering if anyone has changed their salary calculation for term time only workers in light of the Court of Appeal The Harpur Trust v Brazel judgment in August?

The judgment relates to irregular workers who are on permanent contacts - termed 'part-year workers'. It is my understanding that it is no longer possible to pro-rata 5.6 weeks holiday entitlement according to the number of weeks worked per year. Therefore, someone who works a few weeks per year but is contracted on a permanent basis, is entitled to pay based on a 12 week average of the weeks actually worked (not including school holiday closures) for 5.6 weeks 

So, as far as I interpret this someone who works term-time only i.e. 38 or 39 weeks per year should receive 5.6 weeks holiday entitlement (and pay) on top of this. This relates to the 5.6 weeks required by The Working Time Regulations only and not any additional contractual annual leave entitlement.  

The calculator used by the majority of our schools bases annual leave on a pro-rata equivalent of the weeks worked per year. So someone would receive their annual leave based on 38/39 weeks worked rather than the full year of 52. 

Legal advice I have read on the judgment states that employers should urgently review the contracts of permanent staff who work part of the year and make changes to them if they don't provide 5.6 weeks leave. 

Has anyone changed their term-time salary calculation because of this judgment or are you waiting to see if it will go to Supreme Court, or if anyone challenges you for it?

Happy to hear any views and/or see if anyone has received any other guidance on this matter?

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  • David

    | 0 Posts

    17 Sep, 2019 13:19

    www.unison.org.uk/.../
  • Gemma Green

    | 0 Posts

    17 Sep, 2019 13:21

    We pay our schools employees on there paid weeks per year as advised by NJC. So an employee who works 39 weeks a year, is paid for 44.46 weeks, which in response to the case appears to be the correct way of doing this, but doesn't appear to be enough holiday. I have tried contacting the local governments for advice, but nothing seems to have been published yet.
  • Nina Waters

    | 0 Posts

    17 Sep, 2019 13:51

    I read the judgement in detail over the summer, and am still bemused about how this can be perceived as fair. In our school we have plenty of people who we employ for short periods of time every year. Based on this, we may have to pay them more in holiday weeks than they actually work.

    On that basis, I've not made any quick adjustments, but will probably have to do so unless it becomes clear that an appeal is likely.
  • Keith

    | 0 Posts

    17 Sep, 2019 13:57

    In reply to Nina Waters:

    I agree it doesn't seem fair but it does seem in keeping with the legislation. The way its mostly done now is probably fair and reasonable just sadly unlikely to be legal

    Maybe when our politicians find some time they will look at this c2025
  • Alison

    | 0 Posts

    17 Sep, 2019 14:49

    In reply to Keith:

    I think the implications for term time calculations haven't been considered fully. I know the judge referred to 'part-year workers' which would include term-time only workers. Therefore any salary calculation which pro-rata's the 5.6 weeks leave required by the WTR isn't accurate. According to advice I've read since the judgment, there should be a straightforward exercise of identifying a week's pay in accordance with the provisions and multiplying that figure by 5.6.

    To my mind, this means that anyone on a term-time only contract who receives pay each month at 1/12th of annual salary should have their salary calculated based on 38 weeks plus 5.6 weeks minimum (43.6 week) and paid at the rate for a week's pay (most term-time workers are contracted to the same hours each week).

    However, contractually, most people in schools will be entitled to an enhanced amount of annual leave and it would be very difficult to have 2 separate calculations according to this ruling and for the enhanced A/L.

    A minefield I think!!!
  • Peter Stanway

    | 0 Posts

    17 Sep, 2019 17:07

    In reply to Alison:

    It is a mad decision which goes against the original tribunal decision by a sensible judge. I am suggesting that nothing is changed until the Supreme Court has hopefully brought back some common sense.
  • Alison

    | 0 Posts

    1 Oct, 2019 13:12

    I notice the LGA has published an advisory bulletin relating to this case.

    Would anyone be willing to share if they receive it please? No. 673.
    We are not able to access it due to not being part of the local government ourselves.

    Thanks in advance!
  • Gemma Green

    | 0 Posts

    1 Oct, 2019 15:51

    In reply to Alison:

    This would be really helpful to me too, if anyone can share it.
  • Rachael

    | 0 Posts

    7 Oct, 2019 14:21

    In reply to Peter Stanway:

    Hi, we too are waiting to see what happens before changing anything!
  • Craig

    | 0 Posts

    23 Jan, 2020 15:46

    How is everyone in schools and trusts proposing to manage this? I am proposing to our board a review/change inline with The Harpur Trust v Brazil ruling with effect from April 2020.

    Have any LA's, school or trust already applied the judgement?
  • Nina Waters

    | 0 Posts

    23 Jan, 2020 15:55

    In reply to Craig:

    The only practical change we've made so far is to stop offering new permanent contracts when the need is relatively short. So where in the past we might have offered a permanent but zero-hours contract for someone we would use for a fixed period each year (sports coaches, invigilators etc), we have just contracted them for this year.

    Not helpful for them or us, and I'm sure not what anyone intended, but the situation is pretty ridiculous otherwise.
  • Alison

    | 0 Posts

    23 Jan, 2020 15:58

    In reply to Craig:

    I am awaiting legal advice as our solicitors have said they expect an appeal. However, there is the risk of claims of breach of Working Time Regulations and/or as an unlawful deduction in that money owed for holidays they should receive is not paid properly. We have been advised that we should advise our clients to set aside 2 years worth of back pay! Noting that it would be limited to statutory and not any additional annual leave entitlement.
  • Craig

    | 0 Posts

    23 Jan, 2020 16:33

    In reply to Alison:

    My worry, is that the court of appeal's decision is binding law and there is a real risk that, if our practices are not in line with this ruling , this will give rise to unlawful deduction claims including claims for arrears. Personally I cannot see the trust wanting to expose themselves in terms of rising costs re: a appeal to the Supreme Court. I also thought the date for registering an appeal had passed. Having read the judgement three times - it still astounds me. What a mess.
  • Janet

    | 0 Posts

    24 Jan, 2020 08:35

    In reply to Craig:

    I have done some number crunching based on the examples in the Green Book to see which of our staff would be affected. Using our formula, only staff who work 38 weeks per year with less than 5 years' service will be affected. We have yet to decide what to do - as everyone has intimated, this is a real mess and I can't believe it won't go to the Supreme Court. Interestingly, ASCL's view is that, as LA's were responsible for issuing the calculators, they should cover the costs - I'm not holding my breath on that one!
  • Craig

    | 0 Posts

    31 Jan, 2020 15:31

    In reply to Janet:

    Do anyone have access to the Local Government Associations Advisory Bulletins?

    Employment Law Update: Advisory Bulletin 676 contents are:

    Contents: www.local.gov.uk/.../employment-relations
    Unfair dismissal: Human rights considerations
    Case: Q v Secretary of State for Justice (EAT)
    Case in brief: Working time annual leave - I am guessing this may shed some light on the LGA's position.
    Parental bereavement leave and pay
    Key employment law changes 6 April 2020
    National minimum wage increases
    EHRC guidance on sexual harassment and other forms of harassment
    IR35 update: Changes from April 2020
    LGA employment law update: 13 February 2020
    Employment law timetable