Thread by @JasonBraier

1/ Harpur Trust v Brazel: Sup Ct dismisses the appeal, holding part-year workers on year-round contracts are entitled to 5.6 weeks' annual leave per year, with a week's pay determined by s.224 ERA, rather than 12.07% of earnings in the year.
supremecourt.uk/cases/docs/uks…
#ukemplaw

2/ This case is concerned with those who work for varying hours, only working during certain weeks, but under a contract continuing throughout the year.

The question is whether leave for them should be counted proportionately or by ignoring that there are weeks they don't work.

3/ B teaches the saxophone & clarinet as a visiting music teacher at a school run by HT & is accepted to be a worker in that capacity. Her hours vary dependent on the number of pupils needing her music lessons, with B normally working 10-15 hours a week during term time.

4/ B doesn't carry out any lessons for HT during school holidays & is only paid for the hours she teaches. Her employment contract provides for neither minimum guaranteed hours of work nor normal hours of work.

5/ Under her contract, B is entitled to 5.6 weeks' paid leave, to be taken during school holidays or other times convenient for the school. Until Sept 2011, B was paid for 5.6 weeks' annual leave, calculated per term on the 12 weeks' pay received before each school holiday.

6/ From that point HT changed the calculation, paying B 12.07% of the amount earned per term, that equating to the proportion that 5.6 weeks is as compared to a working year of 46.4 weeks. C lost out under this percentage method as compared to the calendar week method.

7/ C brought an unauthorised deductions claim under Part II ERA. The ET found in HT's favour but the EAT allowed her appeal & the CA dismissed an appeal against the EAT judgment. HT appealed to the Supreme Court to try to reinstate the ET's judgment.

8/ HT's appeal rested primarily on arguing that domestic provisions on annual leave had to be interpreted in accordance with the 'conformity principle', & that its application meant that the amount of annual leave should reflect the amount of work performed during the leave year.

9/ HT relied heavily on the CJEU case of QH. There the Court explained the conformity principle as being based on the premiss the worker worked the reference period as a presupposition to the need for annual leave to rest, so that leave should be determined against actual work.

10/ The SC noted that the CJEU held the conformity principle inapplicable in certain situations, such as absence during sick leave. The CJEU extended that inapplicability to circumstances of unlawful dismissal & reinstatement, counting the interim for annual leave entitlement.

11/ As well as the conformity principle, HT relied also on the pro rata temporis principle (applicable under the Part Time Working Directive & PTW Regs) as being parallel to the conformity principle, but again the Sup Ct noted it only applied "where appropriate".

12/ Additionally, the Sup Ct noted that the PTW Directive of course does not preclude legislation discriminating 𝗶𝗻 𝗳𝗮𝘃𝗼𝘂𝗿 of part-time workers.

13/ HT sought to argue the absurdity of allowing part-year workers to obtain a disproportionate right to annual leave as compared to other workers' entitlements. However, the Sup Ct found such disproportionality irrelevant to the construction of the legislation.

14/Given that a more generous entitlement to part-year workers offended against neither the WTD nor the PTWD, HT couldn't succeed on a Marleasing argument to construing the WTR unless able to show the provisions were drafted on the basis that the conformity principle should apply

15/The Sup Ct wasn't satisfied the provisions were drafted in that way, noting that the WTR at Regs 13, 13A cross-refer to s.224 to calculate the average week's pay, but not for the purpose of calculating the number of weeks' leave, & hence not for determining the length of leave

16/ The Sup Ct also noted that Regs 13(5), 13A(5) & 14 prorate leave entitlement of the new & departing worker for starting or leaving during a leave year on the basis of the time yet to elapse (reg 13/13A) or that has elapsed (reg 14) rather than by reference to the work done.

17/ As well as the percentage method, HT proposed another alternative, the 'Worked Year Method' by which you take the working weeks (c.34 for a school year) & divide by the number of working weeks in a full year (46.4) & then multiply 5.6 by the product of that (4.09 weeks for B)

18/ HT asserted 1 of their methods must be right given how some would otherwise be worse off under the calendar week method & extortionately better off. For the latter, HT posited the exam invigilator working 3 40-hour weeks but getting 5.6 weeks' leave at 40 hours per week.

19/ For the former, HT relied on the transitioning down employee, who worked 5 days p/w for 26 weeks & then 1 day p/w after that, entitled to 5.6 weeks paid at 1 day per week re annual leave. Similarly the reverse, but where the employee takes all leave before transitioning up.

20/ The Sup Ct rejected HT's worked examples (there was a complex 4th one too), noting that HT's proposed methods didn't comply with the legislation. The % method didn't involve calculating a week's pay, contrary to Reg 16 WTR. The worked year method misconstrues 'week'.

21/ The legislative choice was made under Reg 16 to use s.224 ERA to define a week's pay for WTR calculations. That itself involved some rough justice (including weeks when a worker worked an unusually low number of hours) but that was the choice the legislature made.

22/ As well as relying on the legislative choice to dismiss HT's methods, the Sup Ct also noted the complexity of those methods where workers worked irregular hours, requiring workers to record each hour worked even where not paid the hourly rate.

23/It was also not relevant to construing the WTD in B's case that a hypothetical other worker would lose out. Marleasing couldn't be relied on due to unfairness to the hypothetical worker where the actual claimant gets at least her WTD entitlement under the calendar week method.

24/ The Sup Ct rejected the absurdity argument, agreeing with the CA that anomalies in extreme cases favouring the highly atypical worker weren't so absurd as to justify wholesale revision of the statutory scheme. Also some of HT's extreme cases could be contractually resolved.

25/ Finally, the Sup Ct rejected an argument that s.229(2) ERA could be used to arrive at a just reference period for determining holiday pay. The Ct held it had no relevance to the Reg 16 calculation & was intended to deal with things such as lump sum annual bonuses.