Consultation to Address Issues Arising From the Supreme Court’s Judgment Last Year in Harpur Trust v Brazel

The Department for Business, Energy and Industrial Strategy (BEIS) has launched a consultation to address issues arising from the Supreme Court’s judgment last year in Harpur Trust v Brazel. 

This Harpur Trust v Brazel case concerned the calculation of holiday pay and entitlement of a permanent part-year worker on a zero-hours contract. The judgment found that the correct interpretation of the Working Time Regulations 1998 is that holiday entitlement for part-year workers should not be pro-rated so that it is proportionate to the amount of work that they actually perform each year.

Part-year workers are entitled to 5.6 weeks of statutory annual leave calculated using a holiday entitlement reference period to determine their average weekly pay, ignoring any weeks in which they did not work. As a result of the Harpur Trust ruling, part-year workers are entitled to considerably more holiday entitlement than part-time workers who work the same total number of hours across the year.

The launch of the consultation shows the government recognises that that the way the law is written creates unintended anomalies and these need to be rectified. BEIS proposes the introduction of a holiday entitlement reference period for part-year workers and those working irregular hours, to ensure that their holiday pay and entitlement is directly proportionate to the time they spend working. This will involve calculating hours worked in the previous 52 weeks and multiplying them by 12.07% to calculate a part-year worker’s annual statutory entitlement in hours.

The closing date for the consultation is 9 March 2023.