Term Time Staff Annual Leave

Are you confused about how to calculate Term Time Staff Annual Leave? This latest ruling from The Court of Appeal has ruled that pro-rating leave is not permitted.

Term Time Staff Annual Leave – Background

Term time only is not defined in law and as such there is no legal calculation for holiday entitlement specifically for term time workers. We have previously referred to the Acas guidance which suggests using the calculations for annualised hours or casual/irregular hours.

Following this guidance, meant calculating annual leave at 12.07% . This is based on a standard working year of 46.4 weeks (52 weeks less statutory holiday entitlement of 5.6 weeks); and 5.6 weeks is 12.07% of 46.4 weeks.

For term-time workers on 38 weeks per year, this meant 4.6 weeks (rounded up) of holiday pay per year. You can of course require them to take the leave during school holidays.

Term Time Staff Annual Leave – What’s New?

The Court of Appeal ruled in Brazel v The Harpur Trust that employers can’t calculate annual leave based on the weeks actually worked e.g. 38 term time weeks. This means that your term time workers must receive 5.6 weeks holiday each year. You can still require them to take their leave during school holidays, as long as they are receiving 5.6 weeks of holiday .

Yes, it means some extreme examples could occur

In the judgement, it was acknowledged that some seemingly odd and extreme examples could occur

 “…a school cricket coach, who would only work for one term, or invigilators, who worked only during the exam season. In principle you could have a permanent employee who worked only one week of the year, for which he or she earned, say, £1,000, and who would then be entitled to 5.6 weeks (notional) annual leave, for which they would receive £5,600.” 

Court of Appeal, Brazel v harper trust

What about term time staff whose hours change each week?

They are still entitled to 5.6 weeks holiday pay. To work out how much to pay if their hours change each week, you have to calculate their pay for the previous 12 weeks. Remember you include only weeks they have worked – ignore weeks where they have been on annual leave or unpaid leave.

For those on bank staff contracts, you can still apply the 12.07% calculation to calculate their holiday entitlement.

What Should I do Now?

This decision is binding in England and Wales, but if could be appealed to the Supreme Court. If an application for appeal is granted, it is likely that similar claims will be put on hold until the Supreme Court decision. You may therefore decide to wait to take any action until we know if an appeal will be lodged. 

If no appeal is lodged, our advice is to update your term time only contracts and pay to reflect 5.6 weeks annual leave. Contact Us for help with drafting new contracts and communications to employees.

You may also find this FAQ document from Irwin Mitchell useful to refer to. Irwin Mitchell are not associated with Early Years HR.

term time staff annual leave

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