Since the issuing of the Supreme Court’s decision in the Harpur Trust v Brazel case on holiday entitlement and pay for part-year workers, schools have had to embark on the process of becoming compliant with the judgment. For many schools this has been a significant undertaking, particularly where they have different types of part-year workers on different contracts – term-time only support staff, invigilators at exam times, sports coaches in the summer or supply staff.
How to become compliant with the judgement
As set out in that previous article, the key to schools getting this issue right involves undertaking a detailed audit of current holiday arrangements, followed by implementing any necessary measures to correct staff pay and contractual entitlement. As part of this process, schools have had to grapple with issues such as what is the difference between a part-time and a part-year worker, what constitutes “normal” pay and whether staff have a sense of their hourly rates.
Schools have also had to look carefully at how they engage those members of staff, such as invigilators, who only work a few weeks per year, and consider whether the additional cost of holiday pay for these individuals outweighs the convenience of a permanent contract. If schools are deciding to move to a new model of hiring such staff on short fixed term contracts, then school need to ensure they continue to comply with all relevant pre-employment safeguarding checks.
One of the questions that has plagued schools has been that of back pay. Schools have had to look carefully at their financial reserves and potential liability for back pay, together with the likelihood that staff may bring a claim. In many cases this has involved difficult decisions as to what they can afford to pay, and this has required careful communication with staff.
A big issue that has been flagged up by the judgement has been that of the need to maintain accurate records for workers with irregular hours. Schools need to ensure they have data readily accessible, showing the hours staff have worked and the pay received. This includes records of all overtime worked.
Is the decision final?
There is no further right of appeal , however the possibility that the Government may legislate to bring a sense of rationality to the issue still remains to be seen. So far, there has been no indication from the Government that they intend to intervene to implement a return to the pro-rata approach to holiday entitlement for part-year workers.
Schools that have not yet addressed the Harpur Trust question are therefore likely to find that tackling the issue proves to be unavoidable.
How can Moore Barlow help?
If schools would like advice on moving their holiday arrangements for part-year workers into a legally compliant framework, they should get in touch.
Since the decision was issued in July, we have guided numerous schools through the process of becoming compliant and, whilst the process may at the outset appear daunting, we can support schools by breaking the task down into manageable steps, reviewing schools’ holiday arrangements. providing communications documents, drafting contract variations and advising on potential pitfalls and how to mitigate possible risks.
