Hi Tania, my view is that your employee is correct. This is because he doesn't book holiday the way someone would on a 52-week contract but has a holiday allowance which is paid to him through his salary and not physically taken as all term time only employees 'take' their holiday during school closures. I would then apply the 12.07% rule going forward in line with the new legislation.

I mean yes, but what difference does it make? Presumably he doesn't book leave, as he gets it within his school holiday hours - so what practical difference does it make to him if that time is allocated against set days at Christmas or at other nominal days across the year? Am I missing something here (always likely...)?

In relation to the changes under Harpur, it will really depend on what has been put in the contract. If the contractual entitlement simply says 'in line with statutory entitlement' or similar, then you can give notice of the changes in the law and recalculate. If that changes his pay as a result (and that of other term time workers) I think it will be really important to explain carefully what is happening and why - it's such an obscure/odd bit of case law, so while I'm delighted that it's returning to normality, I'm not looking forward to having to explain it to people who don't work in this space.

However if your contract has simply specified a full leave entitlement, this would be a contractual change that you would have to approach in the normal way - through consent ideally.

In reply to Nina Waters:

Sorry - I should have been clearer - we are not an educational setting and the advice we were given at the time was that, while the employee only works term time, he is still allowed his full time equivalent annual leave and he takes this outside of school holidays - so he does book holiday during work time.

In reply to Tania:

Hi Tania - I'm confused. You're not an educational setting?

In reply to Tania:

Hi Tania

This is different to normal TTO working - in education we allocate annual leave during the school holidays, thus, staff cannot book time off during term time.

How are you calculating their salary, as you may be paying for holiday and then allowing them additional paid time off, essentially duplicating their entitlement?

Rgds
K

In reply to Kimberly:

We are an engineering company and the employee concerned works term time only as they are a single parent of a primary school child with no childcare. They work 38 weeks of the year having every school holiday off unpaid and are paid their pro-rata salary in 12 equal instalments so they don't have nil pay in August.

Prior to the Harpur ruling we required them to take all leave during school holidays and we calculated their leave on a pro-rata basis as 38/52ths and they received holiday pay for booked leave. Following the Harper ruling we were told that we could not pro-rata their leave and we couldn't require them to take their leave during school holidays. Our HR system automatically books leave to cover Christmas shutdown and the employee is saying that we have to reimburse him for the days deducted from his leave as he doesn't need to have leave to cover Christmas Shutdown. I agree that we need to do this and will reimburse him the leave.

Now that Harpur is being changed we need to revert back to the pro-rata leave system and I believe that we can only do this in the first complete leave year after 1st April (the effective repeal date of Harpur) As our leave year runs from 1st January we have been advised that we can only amend our employee's leave in January 2025. Such fun!

In reply to Tania:

Hi Tania,
Thanks for the additional information. I think the confusion here is that term-time only tends to mean that they don't work in the school holidays and that all their holiday is taken then. There is certainly no problem with requiring holiday to be taken within that period - the only change that Harpur made (and is now being undone) is how much holiday they'd be entitled to.
With the way you've contracted, I agree that this was a period of unpaid leave so they shouldn't be asked to take it out of their holiday pay. I would suggest when you amend the contract, that you think about changing the holiday to a more traditional TTO approach, as it might make this a bit simpler.
Good luck.
Nina