Holiday and Flexible Working

15th December 2022 | Mark Fellows | employment, holiday pay, flexible working

Head of the Employment Law department at Sherrards solicitors, Mark Fellows, highlights two areas to watch for 2023.

As we approach the end of 2022, there have been two key developments in employment law that have got most employment lawyers animated…

Holiday

The case of Harpur Trust v Brazel has caused a real stir. Mrs Brazel was a music teacher employed on a permanent zero-hours contract. Her contract only applied during term time, and she was only paid for the hours taught, which varied weekly. Her holiday entitlement had been calculated using the percentage method, namely multiplying the total hours worked by 12.07% to get the percentage figure of 5.6 weeks’ annual leave in the working year. The case went to the Supreme Court who concluded that the percentage method is unlawful.

Thus, for those employers who engage zero-hours, term time only or part-year workers (those who do not work the entirety of the year, but who are on permanent contracts), this decision will have notable implications. Their holiday pay shall be calculated by reference to average earnings over 52 weeks (but discounting weeks in which the worker did not work) and not in respect of hours worked.

The decision has the potential to produce very odd results. For example, a worker who works 3 weeks a year would be entitled to 5.6 weeks annual leave each year at a full week’s pay. They would receive 3 weeks’ pay for the 3 weeks they worked, plus another 5.6 weeks on top of that! Such workers could therefore end up receiving a much higher proportion of annual holiday pay compared to their colleagues who are full-time or part-time workers who work regular hours.

Employers impacted by this decision should review their current arrangements, to ensure compliance, and employers may also want to explore alternative ways to engage with these workers. It is one area where we would recommend that an employer seeks legal advice.

Flexible Working

The Government has launched a consultation in respect of flexible working, with a view to improving the current flexible working process. Some notable changes are being proposed:

• The proposal seeks to remove the 26-week service qualifying right, such that a flexible working request can be made on day 1 of the commencement of employment;
• An employee can make up to 2 requests in 12 months, as opposed to the current entitlement of 1 request every 12 months;
• Employers have 2, instead of 3 months to respond to a request;
• Removal of the requirement for the employee to explain the effects that the changes to their working arrangements could have on the employer;
• Putting an obligation on the employer to offer alternatives, if it intends to reject the request.

This is yet to be passed as new legislation but it is one to watch for 2023…