Following a recent decision by the UK Supreme Court, workers on zero hours contracts could be entitled to more annual leave that what they have previously been getting
In Brazel v The Harper Trust (2022), the Supreme Court ruled that hourly-paid employees and workers who work throughout the year, but not necessarily every week, are to be treated as “part-year workers” and so should be entitled to the full holiday entitlement of 5.6 weeks.
Previously, many employers of zero hours workers would calculate the holiday entitlement by multiplying the total number of hours worked in the year by 12.07%. That percentage was often used as a rule of thumb because it was the proportion of total holiday entitlement (5.6 weeks) out of the total number of working weeks in the year (52 – 5.6).
However, in Brazel, the Supreme Court has said that by using 12.07% of total hours worked, employers were effectively capping the holiday entitlement of those who do not work every work to below 5.6 weeks.
Since workers on zero hours contracts are now entitled to 5.6 weeks, even if they do not work every week, the only legitimate method for calculating holiday pay is the Calendar Week method. Each time a zero hours worker requests annual leave, the employer has to work out the average weekly pay over the last 52 weeks, excluding any weeks the worker did not work. If a worker takes a week’s holiday, they should be paid an average week’s pay.
The amount of holiday already taken during the holiday year should be deducted from 5.6 to give the outstanding entitlement.
It is now unlawful for an employer to roll up accrued holiday pay with your pay in each pay period. But if your employer does happen to do that, and is calculating your entitlement as 12.07%, then it is possible that you are being underpaid if you do not work every week.
Obviously, if zero hours worker wants to take part of a week as annual leave, it’s important to understand what constitutes a day. A zero hours worker may not necessarily be working 7-8 hours in per shift – some may work four or five hours, for example, others may work 12 hours, depending on their job. Since “day” is not defined in law, then what constitutes a day’s leave depends very much on the individual context. If a typical shift is for a particular worker is, say, four hours, then one day’s leave would be four hours.
It’s important to note that the decision in Brazel does not apply to part-time workers, who are contracted to work fixed hours or days every week, just not five days a week. A part-time worker who works, for example, three days per week, would be entitled to 3x5.6 weeks’ leave (16.8 days or 3/5 of 28 days).
Furthermore, the judgement does not apply to those workers who are genuinely casual workers - someone whose casual worker agreement states they are a casual worker, each assignment is a separate contract and a P45 is issued at the end of each assignment. However, Zero Hours Justice is aware, however, that many employers employer casual workers in a way that is far from casual. Whether a casual worker can claim to be a part-year worker depends on the day to day reality and, in particular, whether there was a continued umbrella of employment or an expectation that the employment relationship continued during weeks when there was no work.
If you are currently on a zero hours contract and believe that your employer has calculated your holiday pay incorrectly, you may be able to bring a claim for unlawful deduction of wages. You would need to submit the claim to the employment tribunal within three months less a day of the date that the incorrect holiday payment was made.
Following advice and support provided by Zero Hours Justice, a zero hours worker has won her employment tribunal claim against Turner Contemporary for redundancy pay.
In January 2021, at the height of the Covid pandemic, the Margate-based art gallery laid off around 40 casual workers following restructuring. Zero Hours Justice was contacted by a number of casual workers, who had worked for Turner Contemporary for a number of years on a regular basis and felt that they should have received redundancy pay.
Casual workers, who are supposed to work on an ad hoc basis, do not usually benefit from employment rights such as redundancy pay and protection from unfair dismissal. Some of the casual workers who contacted Zero Hours Justice were able to reach settlements using Acas’ early conciliation service.
However, one casual worker, Jan Wheatley (“the claimant”), was so outraged at the treatment by Turner Contemporary (“the respondent”) that she decided to go to court to expose it. She had been working for the art gallery for 10 years when her contract was terminated.
The respondent’s casual worker agreement made it clear that work was not guaranteed and workers were not obliged to accept work when offered. However, the employment tribunal found that the wording of the agreement did not reflect the claimant’s day-to-day working reality and that, in practice, she was an employee and so entitled to redundancy pay.
Ms Wheatley said: “There is no way I would (or could) have had the confidence and strength to attend a tribunal hearing, without the support and guidance of Zero Hours Justice.
“I was advised by ACAS that representing myself would not be wise, and that the respondent's attempts to settle would be seen as conciliatory; I did not have the experience or skills required to present an adequate case and that would put me at risk of having to pay the respondent's legal bill after almost inevitably losing.
“Although Zero Hours Justice was unable to provide legal representation, they were more than willing to read over my notes, make suggestions and give valuable feedback and guide me through the legal jargon with expert knowledge and the crucial insight necessary for me to navigate a completely unfamiliar and complicated system.
“Zero Hours Justice may be best known for their campaign activity but they were the backbone in my fight, and played a very real, very substantial role in my subsequent win.”
It’s important to note that this judgement in Wheatley v Turner Contemporary (2022) turned very much on the specific circumstances of the claimant’s employment. It does not create a general rule for casual workers and redundancy payment. But hopefully, it can show how casual workers and other workers on zero hours contracts may, in reality, be employees and entitled to the associated statutory rights.
Some of the key facts that led to the judge deciding that the claimant was an employee were as follows:
The judge also concluded that section 212(3) of the Employment Rights Act 1996 applied to closures of the gallery in-between exhibitions to preserve the claimant’s continuity of service as the closures only led to temporary cessations in work. Once the gallery reopened, the claimant’s was offered work.
Turner Contemporary has decided not to appeal the decision.
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Images can be downloaded from here. Image of Julian Richer should be credited to Gerardo Jaconelli.