In the case of Brazel v The Harpur Trust the Employment Appeal Tribunal ruled that part-time workers may receive proportionately greater holidays than their full-time counterparts.

The claimant, a visiting music teacher, was employed by the respondent on a zero-hours contract, under which her weekly hours fluctuated, and she was required to take annual leave during the school holidays.

The claimant’s contract of employment allowed for 5.6 weeks’ annual leave, mirroring her statutory entitlement. Instead of calculating the basis of her holiday pay by applying Regulation 16 Working Time Regulations 1998 and section 224 Employment Rights Act 1996, the respondent calculated it on the basis of 12.07% of her total pay over a year. (The equivalent legislation in NI is Regulation 20 of the Working Time Regulations (Northern Ireland) 2016 and Article 20 of the Employment Rights (Northern Ireland) Order 1996)

The employer relied on Acas guidance (GB) to this effect, which states that the statutory holiday entitlement of 5.6 weeks equates to 12.07% of hours worked over a year.

The respondent argued a part-time employee who only works part of the year should have his or her 5.6 weeks' holiday entitlement pro-rated to reflect the weeks that he or she actually works to ensure that full-time employees are not treated less favourably, and to avoid a "windfall" for term-time only workers.

The Employment Tribunal, finding for the respondent, deemed it necessary to read wording into the Regulations. It concluded that application of the pro-rata principle was appropriate and 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 claimant challenged the decision, emphasising that paying 12.07% of hours worked was not the same as paying the normal rate of pay averaged over the 12 weeks prior to holiday being taken, as required by the WTR.

Allowing the appeal, the EAT stated the Part-time Workers Regulations 2000 have as their overriding principle the concept that part-time workers are not to be treated less favourably than full-time workers, that 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:

“It is true that the application of section 224 may have its anomalies, such as to favour someone who does not work throughout the year, but I cannot see how that justifies either words being read into the WTR… that the entitlement to 5.6 weeks' pay should be pro-rated.”

His Honour Judge Martyn Barklem distinguished the present case from the ECJ cases of Greenfield and Land Tirol which required application of the pro-rata principle in circumstances when there had been changes to work patterns.

He confirmed that as the claimant was “someone working irregular hours, the straightforward application of section 224 of the ERA enabled a week's pay to be computed in a simple and straightforward manner.”

The case was remitted to the same Employment Tribunal for computation of the sums due to the claimant by application of section 224 ERA.
http://www.bailii.org/uk/cases/UKEAT/2018/0102_17_0603.html