The ISM's Supreme Court fight for Peris and VMTs
ISM Senior Legal Adviser Nerys Owen tells us about the history and significance of the landmark holiday pay case the ISM has supported all the way to the Supreme Court.
What is the ISM's history with this case?
ISM member Lesley Brazel works part-time, teaching clarinet and saxophone at an independent school operated by The Harpur Trust. Like many VMTs and Peris, Mrs Brazel’s termly working hours depend on how many pupils need lessons on her instruments. Mrs Brazel has a permanent ‘zero-hour style’ employment contract, so there are no guaranteed minimum hours, and the employer pays only for work done.
Mrs Brazel first sought the ISM’s help back in 2013, when the ISM legal team first took up her complaint about how her holiday pay was calculated and helped her bring a formal internal grievance. That grievance was dismissed because the Harpur Trust maintained that they were entitled to pro rate her holiday pay to term-time only, since she didn’t teach during the holidays. They based their approach to holiday pay on Acas guidance (since withdrawn) designed for working out the holiday pay of casual workers.
In March 2015, Mrs Brazel launched an employment tribunal claim under the Working Time Regulations. It has taken eight years - and a good many stages along the way - for the case to reach the Supreme Court. The ISM’s legal expenses insurance has funded Mrs Brazel’s case throughout.
A high point for the ISM was Mrs Brazel’s victory in the Court of Appeal in August 2019. This victory brought home to us how our continued support for this case could potentially benefit hundreds of thousands of workers, including music teachers working in a school setting. The ISM salutes Mrs Brazel’s courage and determination in continuing with this case. We feel privileged to have been able to stand behind her.
Since the ISM was created in 1882, we have been working to protect the rights of those working in music, but this marks the first time we have supported a case all the way to the Supreme Court.
When do you expect the Supreme Court to decide the case?
The case will be heard over one day by the Supreme Court judges on 9 November 2021. The judges will then reach their decision and publish a written judgment. It is very difficult to predict when this will happen, but it is most likely to be some time in early to mid-2022.
What difference can it make having a professional body involved in legal cases like these?
ISM membership includes access to our expert legal team, as well as legal expenses insurance cover for a wide range of claims, including employment disputes. Hourly rates for solicitors range between £150 and £300 plus VAT – and even more in expensive cities like London. So without the access to the expert help that organisations like the ISM provide, the cost of litigating can make enforcing your employment rights a non-starter for all but the wealthiest workers. We help to level the litigation playing field.
In theory, you can represent yourself in the employment tribunal. In reality, employment law and the tribunal process is dauntingly technical and complex. This ‘inequality of arms’ is all too readily apparent when your employer arrives at the first hearing with their solicitor and barrister (sometimes two) in tow.
In fact, the benefits begin long before you arrive at the tribunal, because an employer who knows you are backed by a professional body and able to pursue your claim through the courts if necessary is far less likely to break the law, and much more likely to be willing to negotiate. In many employment disputes, there is also safety in numbers - the more ISM members who are willing to step forward, the stronger our voice will be.
Mrs Brazel’s case has become a landmark case, making a difference to thousands of people, but it is also important to remember that every day the ISM legal team works with members facing all kinds of concerns and problems at work, especially with the challenges created by COVID-19. Belonging to a professional body like the ISM gives you access to the advice and support you need to understand your rights and to take effective steps to enforce them where necessary.
What makes this a landmark case?
Every now and again, a case comes along that impacts on thousands of workers who share the same working conditions, or who are subject to the same practices. This is one of those cases. It will impact not only on the holiday pay of VMTs and Peris, but also on holiday pay rights for thousands of others who work term-time only, such as school catering staff and playground assistants.
The ISM has always maintained that the annual holiday entitlement of VMTs and Peris should be calculated in the same way as for any other worker - by taking a week’s pay and multiplying it by 5.6. If this case succeeds, it will end the still common practice in many schools of pro-rating holiday in proportion to the number of weeks VMTs and Peris are contracted to work, which has resulted in lost pay for Peris and VMTs countrywide.
What should you do if you think you are not being paid the correct holiday pay?
Contact the ISM legal team by email on [email protected], and one of our expert advisers will be able to help you.
The issue at the heart of this case – the widespread practice of pro-rating VMTs’ holiday pay because they are not contracted to teach in school holidays – is just one of several holiday pay problems routinely brought to the ISM’s in-house legal team by our VMT and Peri members. These include contracts that describe a teacher’s status as 'self-employed' when that teacher is far more likely, on closer examination, to be a ‘worker’, with a right to holiday pay, problems understanding what other payments apart from pay for individual tuition should be taken into account to work out a week’s holiday pay, holiday pay that is ‘rolled up’ inside the hourly rate, and a general lack of transparency in employers’ holiday pay calculations.
Individual cases always depend on their own facts, but the absolute maximum that can be recovered in any case is two years of underpayment. Even if a school’s liability is clear, a case can be won or lost on the quality of a member’s own record keeping. There are three months (less one day) in which to bring a claim, counting from the most recent underpayment.
It is fair to say that in general, most VMTs who approach the ISM Legal Team tend to be less interested in pursuing back payments of holiday pay in the employment tribunal than in making sure their school acts lawfully and treats them fairly moving forward, by paying them the correct amount of holiday pay and by providing the clear written information they need in order to work out exactly what they are being paid and why. It’s not much to ask.