If there hasn’t been a clear break in continuity of service of a week which includes two...read more
Full-time staff get the days between Christmas and New Year as paid leave at my job – not official leave but they do not have to come in or take holiday. I work term time so holidays are not included, but should the three days be incorporated into my pro rata leave?
Firstly, it’s important to bear in mind that there are different requirements for statutory holiday, which is the minimum holiday entitlement employers are legally obliged to provide under the Working Time Regulations 1999, and contractual holiday, which is additional holiday employers may offer on top of the statutory holiday entitlement. Statutory holiday is currently 5.6 weeks per year.
Historically, it has been common for term-time workers to receive a pro-rata proportion of statutory holiday, which took into account the fact that hours are not worked full time through the year. However, a recent decision in the case of Harpur Trust v Brazel  UKSC 21, announced on 20th July 2022, found that this approach was not compliant with the Working Time Regulations 1999. The Harpur Trust case found that employees who only work term time, but permanently, should still receive the same statutory holiday of 5.6 weeks throughout the year as full-year employees and this should not be pro-rated.
Following this case the starting point for your holiday entitlement as a term-time worker is that you should be receiving 5.6 weeks statutory holiday and pay per year. If your holiday currently falls below this, this is something that you should raise with your employer. ACAS has a useful guide to checking your holiday entitlement which you may find helpful as a starting point https://www.acas.org.uk/
Depending on their responses, you may have an unlawful deduction from wages claim for any underpaid holiday. These claims can usually look back over the past two years. There are time limits for bringing such claims and therefore you should seek legal advice if you wish to pursue this further. I would highlight that whilst term-time workers are entitled to 5.6 weeks’ holiday as things stand, following the Harpur Trust case the Government has announced a consultation into further changes to the calculation of holiday pay which is ongoing and therefore changes are expected to be made by the Government to the rules for term-time workers in the future.
In terms of Christmas shutdown period, if this is in addition to full-time employees statutory holiday entitlement, the question would be whether you can demonstrate this practice is indirectly discriminatory against part-time workers, specifically yourself and any others in your position who work term time only. To succeed in a part-time worker discrimination claim you would need to establish that you have been treated less favourably in comparison to an appropriate full-time worker who is engaged by the same employer in the same or broadly similar work, working at the same place.
Bank holidays and shutdown periods are a slightly grey area in the law as a policy to only provide paid time off to those who would usually work during the shutdown periods does not usually discriminate against all part-time workers – it will only affect certain part-time working patterns. For example, in this instance, term-time workers such as yourself or in the case of bank holidays, employees who do not work Mondays, when bank holidays generally fall.
The best practice recommendation is for employers to pro-rata all bank holidays and shutdown periods to ensure that part-time workers receive a pro-rata proportion of contractual holiday. However, there has not yet been a reported case where the Tribunal has reached a decision that this is required for term-time workers so there is no firm decision on this point. Whilst you may have a claim in this situation if you can demonstrate that the reason for the less favourable treatment is your part-time status and your employer cannot show that its policy to only provide the additional shutdown days to those at work is justified, there is limited guidance available in this area.
I recommend as a starting point you raise your concerns with your employer that you do not benefit from the shutdown days due to your part-time status as a term-time worker and ask them to explain the rationale for this decision. If you are not satisfied with the response, you can raise this formally as a grievance via your employer’s grievance procedure. You also have the right as a part-time worker to request a written statement giving particulars of the reasons for the treatment if you believe that you have been treated less favourably on the grounds of part-time status and can consider bringing a claim.
*Charlotte Farrell and Tabytha Cunningham are Associate Solicitors at Paris Smith in Southampton. They will be speaking on flexible working rights on the next Mums.Dads.Work podcast which will be available from next Monday.