Hallett v Derby Hospitals NHS Foundation Trust [2019]
The case of Harpur Trust v Brazel [2019] concerns holiday pay for part-year workers not subject to pro rata reduction.
Under the Working Time Regulations 1998, workers in the UK, including part-time workers, have a right to a minimum of 5.6 weeks’ annual leave and are entitled to be paid at the rate of a week’s pay in respect of each week of leave.
Establishing a regular approach to calculate such holiday entitlement for workers without normal working hours can be difficult. The general rule recommended by ACAS is that the worker accrues holiday entitlement at the rate of 12.07% of hours worked.
In terms of calculating holiday pay entitlement, under the Employment Rights Act 1996, a week’s pay is taken to be the worker’s average weekly pay in the 12 weeks before the calculation date, excluding any weeks in which no remuneration was payable.
In this case, Mrs Brazel worked as a visiting music teacher under a permanent contract on a zero hours basis and, therefore, was only paid for the amount of work carried out. Mrs Brazel only worked during school term-time. Whilst Mrs Brazel was a part-time worker because she didn’t work the full week, the case is concerned with her being a part-year worker as she didn’t work for a large part of the year (during school holidays). Mrs Brazel’s employer calculated her earnings at the end of each term and paid her one-third of 12.07% of that figure for the holiday pay entitlement.
Mrs Brazel argued that her holiday entitlement should be paid at the level of her average earnings over the 12-week period before the holiday taken (ERA 1996), even though this would result in her being paid 17.5% of her annual earnings rather than 12.07%. The Employment Tribunal disagreed and held that the principle of pro rating for holiday entitlement should also apply to holiday pay. Mrs Brazel subsequently successfully appealed to the EAT.
Mrs Brazel’s employer appealed to the Court of Appeal which held that the approach set out in the Working Time Directive (that workers are entitled to four weeks’ paid annual leave) does result in holiday entitlement being capped for part-time workers under the accrual approach, but does not cap the holiday pay to which the workers are entitled.
The importance of this case is that, although it only applies to workers on permanent contracts, it’s likely to lead to a flood of part-year employees (including potentially workers who are not on permanent contracts) raising the issue of their holiday pay and bringing claims for unlawful deductions of wages. Employers should take a pragmatic approach in the hope that ACAS updates its guidance on the matter.
The case of Hallett v Derby Hospitals NHS Foundation Trust [2019] dealt with a breach of contract claim against an NHS Trust for producing artificial data for compliance purposes.
NHS Trusts are required to carry out monitoring of junior doctors’ working hours and rest breaks. Junior doctors are required to participate in monitoring exercises which need to cover 75% of the shifts during the monitoring period (usually two weeks, twice a year). If a valid monitoring round shows that a rota is non-compliant with prescribed working hours and rest breaks, all doctors on that rota are placed onto a higher pay band until a further monitoring round can show that the rota is compliant.
In practice, monitoring information is often incomplete and supplemented with expected data for the relevant shifts. A junior doctor argued that this methodology produced incorrect results which amounted to a breach of contract and the Court of Appeal agreed.
Specifically, the Court of Appeal stressed that monitoring results must be calculated using actual recorded data at all times, as opposed to expected data or artificially produced data. The only exception would be where a doctor worked a shift but failed to submit a return for it.
This case is of national significance as the flawed monitoring process is used across NHS Trusts. Eliminating artificially produced data will likely result in more shifts being non-compliant and more pay increases to reflect the lack of compliance.
