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Government consultation on Harpur Trust judgement

In July 2022, the Supreme Court handed down its judgment on Harpur Trust v Brazel. The Supreme Court dismissed the appeal by the Trust, confirming that part-year workers (those who work some weeks and not others but are employed throughout the year) are entitled to a minimum of 5.6 weeks of paid annual leave which cannot be prorated. Pay is calculated using a reference period (currently 52 weeks) to determine a worker’s average weekly pay, ignoring any weeks in which they did not receive any remuneration, and not by using the 12.07% basis.

The ruling impacts not only part-year workers, but also certain other irregular-hour workers. It has the effect that such workers may benefit from a proportionally higher holiday entitlement than a full-time worker and more than part-time workers with regular hours, even if they work the same total hours in the year.

The government has recognised the unintended anomalies created by the current wording of the Working Time Regulations 1998 and as such, launched a consultation on 12 January 2023, which will remain open for 8 weeks until 9 March 2023. It hopes to amend legislation to allow holiday entitlement to be pro-rated for part-year and irregular hours workers, so that annual leave is directly proportionate to the time they spend working.