Understanding the ISM's Supreme Court success
ISM Legal Director, Stuart Darke, explains the Brazel v Harpur Trust supreme court judgement.
In brief, what was today’s judgment?
The Supreme Court has handed down their judgment in the case of The Harpur Trust v Brazel. This is a landmark case which determines how the holiday pay of workers who work term time only should be calculated. The judgment represents the final appeal stage since Mrs Lesley Brazel approached the ISM in-house legal team for advice in 2013. Mrs Brazel has been supported by the ISM from the initial grievance all the way to the Supreme Court.
The law says that all workers have a basic right to 5.6 weeks of paid holiday each year.
In 2019, the Court of Appeal supported Mrs Brazel and the ISM’s position by ruling that the holiday pay of term time only workers like visiting music teachers should be calculated straightforwardly, by simply taking a normal week’s pay and multiplying it by 5.6 to produce 5.6 weeks of paid holiday. Mrs Brazel’s employer, The Harpur Trust was arguing that instead, holiday pay for their hourly paid staff should be calculated by applying a ‘pro-rata’ formula based on 12.07% of basic hourly pay. The source of this 12.07% formula was old Acas guidance on calculating the holiday pay of workers with irregular hours, that was withdrawn as a result of this case.
The Supreme Court has dismissed the Harpur Trust’s method of calculating holiday pay and backed the ISM’s method.
What’s the wider significance of this ruling and what does it mean on a practical level for music teachers?
This ruling will affect anyone who works term-time only and whose hours can vary from term to term but who is contracted for the whole of a year. As the Supreme Court is the final appeal stage for any legal case in the United Kingdom, this ruling settles the issue and has been eagerly anticipated.
On a practical level, it will mean that music teachers who are engaged on a term time only basis will have certainty about how their holiday pay should be calculated.
Is there anything term-time workers can or should do at this stage if they are unsure their holiday pay is correct?
Music teachers who are employed on a term time only basis should check how their holiday pay has been calculated. This should be included on a payslip, or you could ask the school where you work. We will be publishing more advice in due course, but if you are concerned about this, as an ISM member you can contact [email protected].
Employers should look at the method which they have been using to calculate holiday pay and, if necessary, make adjustments to ensure they are compliant with the Supreme Court decision. There may be the potential for staff whose holiday pay has been underpaid to be awarded up to two years of back pay.
What has been the impact of ISM’s involvement in this case?
The ISM in-house legal team of lawyers supports members all year round in cases ranging from unpaid fees to redundancy and discrimination.
ISM members have free-of-charge access to the legal team, who deal with over 1,600 cases per year. A member of the ISM legal team saw the potential for this case when approached by our member, Mrs Brazel. The ISM has supported Mrs Brazel throughout the case, since first being approached for legal advice in 2013. ISM insurance cover made it possible for Mrs Brazel to continue pursuing this case all the way to the Supreme Court, to reach a final determination. All ISM members have access to the ISM legal expenses insurance as a membership benefit.