The government has published a revised holiday entitlement calculator, and updated guidance on calculating holiday entitlement. Following the Court of Appeal's decision in The Harpur Trust v Brazel the calculator was taken down from the government website. The new calculator calculates holiday entitlement in terms of the number of weeks as a proportion of the 5.6 weeks' entitlement.
In Brazel the Court of Appeal found that a part-time music teacher should have her accrued holiday entitlement calculated in accordance with the 12-week averaging calculation under Regulation 16 of the Working Time Regulations 1998 (the WTR) and section 224 of the Employment Rights Act 1996. This provides that the amount of a week's pay is the amount of the employee's average weekly remuneration over a 12 week period. The school had calculated her entitlement to holiday pay as 12.07% of the hours worked the preceding term, relying on Acas guidance which states that the statutory holiday entitlement of 5.6 weeks equates to 12.07% of hours worked over a year.
The decision in Brazel is limited to cases of "part-year workers" on permanent contracts. The Court defined a "part year worker" as someone who does not work a full working week and who, for parts of the year (in this case the school holidays) has no work at all. This means that, although the decision will not affect part-time workers, it may impact on those using zero hours staff on permanent contracts where the 12.07% calculation figure will potentially be open to challenge.
Two guidance documents have also been issued, 'Holiday entitlement: Guide on calculating statutory holiday entitlement for workers', and 'How to calculate holiday entitlement for workers on different types of contract'. Following Brazel the reference to the calculation of 12.07% of hours worked have been removed. The guidance states that for those workers who do not have a regular working pattern, holiday entitlement should generally be kept in weeks. It may be that employers will wish to calculate average days or hours worked each week based on a representative reference period.
It's worth noting that the new guidance does not cover the calculation of holiday pay, only holiday entitlement.
