Brazel v The Harpur Trust, Court of Appeal - United Kingdom Employment Appeal Tribunal, March 06, 2018, [2018] UKEAT 0102_17_0603

Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Brazel v The Harpur Trust
Resolution Date:March 06, 2018
 
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Copyright 2018

Appeal No. UKEAT/0102/17/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 10 October 2017

Judgment handed down on 6 March 2018

Before

HIS HONOUR JUDGE MARTYN BARKLEM

(SITTING ALONE)

MRS L BRAZEL APPELLANT

THE HARPUR TRUST RESPONDENT

Transcript of Proceedings

JUDGMENT

UKEAT/0102/17/LA

APPEARANCES

SUMMARY

PART TIME WORKERS

The Appellant (Claimant below) was a part-time music teacher working mostly during term-time. She had a contractual right to 5.6 weeks holiday pay, mirroring her statutory right. Rather than calculating the basis for holiday pay by the methodology set out in section 224 Employment Rights Act 1996, the Respondent calculated it on the basis of 12.07% of her total pay over a year.

The Employment Tribunal upheld this, holding that a principle of pro-rating should apply such and/or that the statutory scheme by which a week's pay was computed should, in the case of part-time workers who work fewer than 46.4 weeks per year, be read down such that holiday payment should be capped at 12.07% of annualised hours.

The Employment Appeal Tribunal upheld the appeal. The Part-time Workers Regulations 2000 have as their the overriding principle the concept that part-time workers are not to be treated less favourably than full-time workers. There is no principle to the opposite effect, and thus no basis for the judicial amendment of a statutory scheme, the provisions of which are unambiguous.

HIS HONOUR JUDGE MARTYN BARKLEM

1. This is an appeal from the Decision of the Employment Tribunal (``the Tribunal'') sitting at Bury St Edmunds (Employment Judge Laidler, sitting with lay members Mr G Mathias and Ms M Lee). Written Reasons, which I will refer to as ``the Reasons'', were sent to the parties on 13 January 2017.

2. I shall refer to the parties as they were below. The appeal is brought by the Claimant, who was and is a visiting music teacher engaged by the Respondent, which runs Bedford Girl's School (``the School'') where the Claimant works. She worked on what is known as a ``zero hours'' contract, more precise provisions of which, so far as they are relevant to the appeal, are set out below. For obvious reasons, her work takes place mainly during school terms.

3. The case is concerned with the computation of statutory holiday pay. As will be seen, the Claimant's contract of employment provides for her to have 5.6 weeks annual leave. This is the same as her statutory entitlement, and the contractual term was, no doubt, intended to reflect that.

4. The Respondent's case, which succeeded before the Tribunal, is that the statutory entitlement to 5.6 weeks holiday pay per annum should, in the case of an employee who works during fewer weeks than a ``standard'' 46.4 week working year (i.e. 52 weeks less 5.6 weeks statutory leave) be pro-rated so that the entitlement to holiday pay is based on the number of weeks actually worked as a proportion of 46.4 weeks. In the present case, a school year varies and can be between 32 and 35 weeks long.

5. To do otherwise, the Respondent contends, unfairly rewards those who work fewer weeks during the year than those who work the full number of weeks.

6. The point can be illustrated by a simple example. A part-time worker works irregular hours throughout each week of the year. His or her holiday pay is calculated based on the statutory provision in section 224 of the Employment Rights Act 1996 (set out below), namely his average earnings over a 12 week period, immediately before leave is taken. That is defined as a week's pay. Assuming that the calculation results in his having worked an average of 20 hours per week, his holiday pay will be based on his pay for those 20 hours.

7. Now take another part-time worker who works similar irregular hours but for only 32 weeks of the year. This would be typical for a term-time only employee in an educational establishment. When he or she wishes to take leave, the provisions of section 224 will result in a similar payment, even though that worker has worked for a smaller proportion of the year.

8. In practical terms, and assuming a similar working pattern throughout the year, the first employee would receive approximately 12.07% of his or her annual earnings as holiday pay, while the ``term-time only'' employee would receive 17.5% of annual earnings.

9. By contrast, the Claimant's case, in a nutshell, is that the existing statutory regime already has built into it a mechanism which has regard to the fact that part-time workers work fewer weeks. All relevant European and domestic legislation is aimed at ensuring that part-time workers receive ``at least'' as much as full-time workers, and there is no lawful basis for ``writing down'' clear and unambiguous provisions.

10. The Respondent's argument is based principally on recitals 2 and 5 to the Working Time Directive 2003/88/EC (``WTD''), and on dicta in two decisions of the CJEU, Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol C-468/08 [2010] IRLR 631 (``Land Tirol'') and Greenfield v The Care Bureau Ltd C-219/14 [2016] IRLR 62 (``Greenfield'').

11. I am told that, although the sums involved in this particular claim are small - something over £100 per annum - the subject matter of this appeal will potentially affect many visiting music teachers and, similarly, many schools which employ them. It is, therefore, a point of some importance.

12. This appeal is concerned with only with the Tribunal's decision in respect of the computation of holiday pay. This finding, at page 1 of the Judgment and Reasons, is that:

``1. There has been no unlawful deduction of wages as a result of the application of the 12.07% calculation for the purposes of the [Claimant's] paid annual leave.''

13. There is no appeal from the other findings.

14. In the course of the hearing of the appeal Mr Lachlan Wilson, for the Claimant, indicated that the appeal was not being pursued in respect of any contractual finding: this is because no additional contractual benefit would accrue to the Claimant above and beyond the application of the statutory approach which he advocates. The appeal therefore hinges solely on the proper construction of the Working Time Regulations 1998 (``WTR'') and associated provisions of the Employment Rights Act 1996 (``ERA'') and whether additional words fall to be read into regulation 16(3)(d) of the WTR in order to reach a conclusion consistent with the WTD.

The Tribunal's Relevant Findings of Fact

15. The relevant terms of the Claimant's employment were as set out paragraph 26 of the Reasons:

``26. The agreement between the parties seen by the Tribunal in the bundle was dated 11th April 2011. This was between the Trustees of the Bedford Charity and the Claimant and confirmed her role as a Visiting Music Teacher. She would be employed at Bedford Girl's School with effect from 1st September 2011 but it acknowledged that her continuous employment commenced with the charity on 1st September 2002. The following clauses are relevant from that agreement for the purposes of this Hearing:-

``11. Duties: Your duties include, but are not limited to, providing individual personal tuition in your subject/instrument in accordance with a timetable to be agreed with the school. In addition, you are required to carry out all duties of a visiting music teacher as reasonably directed by the Director of Music. Your duties will include but are not limited to the description at Schedule 1 entitled Role of the Visiting Music Teacher ...

17. Working hours: As a visiting teacher, requirements for your services will depend upon a varying level of demand for individual personal tuition in your subject/ instrument. Demand may vary from term to term. There are no minimum hours of work guaranteed to you and you have no normal hours of work.

18. Other employment: you are entitled to accept other employment or to work on your own account when your services are not required by the Charity but you may not undertake any activities which would, in the reasonable opinion of the charity, be likely to interfere with the discharge of your duties in the School or be prejudicial to the interests of the Charity and/or the School ...

22. Rate of pay: You will be paid the current hourly rate of £28.77 per hour. The Charity has the right to alter the rate from time to time and any such [alteration] will be effective from the date notified to you.

23. Payment: You will be paid monthly in arrears at the end of the month directly into a bank account or building society account nominated by you ...

Holidays

27. Entitlement: The holiday year runs from 1 September to 31 August each year. During the holiday year you will be entitled to 5.6 weeks paid holiday. Holiday must be taken during the normal School holidays or at such other times as are convenient for the School.

28. Unused holiday: You may not carry forward any unused holiday entitlement to a subsequent holiday year....

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