All ‘workers’ are entitled in law to 5.6 weeks holiday each year (capped at a maximum of 28 days) and to be paid at the rate of ‘a week’s pay’ for each of these weeks. Here we answer some frequently asked questions about what this means, particularly for part-time, term-time music teachers in schools:
Are you a ‘worker’?
All employees are “workers” In addition, there is a group of people who are not employees but who nevertheless fall into the category of ‘worker’. These individuals (i) are contracted to provide services (such as music tuition) personally to another party (such as a school) but (ii) that party is not a client or customer of any profession or business carried out by them.
So for example a teacher engaged by a school to provide lessons is paid by the school and cannot send a deputy, may be classed as a worker even if they do not meet the definition of an employee. They may therefore be entitled to holiday pay.
On the other hand a private music teacher who contracts directly with their pupils or their parents is unlikely to be classed as a ‘worker’ as in these situation you are contracting with clients/customers as part of your business/profession.
If you are contracted on a salaried basis then as long as you receive at least 5.6 weeks holiday per year you will generally be regarded as having received your statutory entitlement to holiday pay. However, if you regularly do overtime and are paid extra for this, this may need to be reflected in an increased amount of pay during periods of holiday.
Hourly-paid (non-salaried) teachers
If you are paid on an hourly basis only for hours you actually work, you should be paid an additional sum equivalent to a normal week’s pay for 5.6 weeks of statutory annual holiday . Frequently employers state that this holiday pay is included within the hourly rate (rolled-up holiday pay). However, this is not lawful and you are entitled to an additional amount for holiday pay. This is the case even if your contract states that your hourly rate includes your holiday pay. You should seek advice from the ISM legal team.
What is ‘a week’s pay’?
If you have normal, fixed working hours the amount of ‘a week’s pay’ is the sum you earn in a normal teaching week. If your hours vary, ‘a week’s pay’ is your average weekly earnings over the 12 weeks immediately prior to the holiday being taken, in which you actually worked. School holiday weeks and term-time weeks in which you did no teaching and other weeks in which you did no paid work should be disregarded in calculating this average.
Calculating the amount of holiday pay
The simplest method of estimating the amount of holiday pay you are due is to calculate ‘a week’s pay’ and multiply this by the 5.6 weeks of holiday entitlement. So, if you have been time-tabled to give 10 hours teaching per week at an hourly rate of £30, your holiday pay entitlement is £1,680 (=10 x 30 x 5.6).
Some schools prefer to calculate holiday pay in relation to total remuneration over the academic year. They should estimate average weekly earnings (as an approximation for ‘a week’s pay’) by dividing total remuneration by the number of weeks worked and then, again, multiply this by the 5.6 weeks of holiday entitlement. So, using the example above, however many weeks you teach in a year, your holiday pay will still come to £1,680.
However, some schools calculate average weekly earnings of teachers who work in term-time only not over working weeks only but over the entire year other than statutory holiday weeks, that is over 46.4 weeks. This produces a smaller amount of holiday pay, £1,086.21 in the example above. In our view, this method of calculation is erroneous and means that the teachers involved are not receiving their full holiday pay entitlement. The legislation makes it clear that weeks in which the worker does not work should be disregarded for purposes of calculating ‘a week’s pay’. Moreover, there is nothing in the legislation to suggest that in order to qualify for the full amount of statutory paid holiday a worker must work throughout the remaining weeks of the year. If you believe that your employer is not giving you the full 5.6 weeks holiday paid at the rate of a full week’s pay then you should contact the ISM legal team for advice.
Claiming holiday pay
If you are concerned that you are not receiving your full entitlement to holiday pay, you should contact us for advice. If you have not been paid holiday pay or have been paid it incorrectly, it may be possible to claim some backdated holiday pay. However, as backdating is restricted to a maximum of two years, it is important that you take action to assert your rights to holiday pay without delay to avoid losing money.
The ISM provides the information in these advice pages as guidance on the topics covered. This information should not be regarded as an authoritative statement of the law or a substitute for legal advice. You should not act or refrain from acting on the basis of this information without first obtaining advice from the ISM legal team. The ISM will not be liable to you if you rely on the information in these advice pages without first obtaining advice from the ISM legal team.