Government consults on holiday after Harpur Trust v Brazel

Wednesday 25th January 2023

Following the SC decision in Harpur Trust v Brazel, the Government is consulting on the calculation of holiday entitlement received by part-year and irregular hours workers. 

The SC’s decision means that currently part-year workers on a permanent contract must receive at least 5.6 weeks holiday, which should not be pro-rated so that the holiday entitlement is proportionate to the amount of work carried out. The SC held that the Working Time Regulations give part-year workers holiday entitlement without providing for any adjustment to reflect the number of weeks worked. Therefore, part-year workers are entitled to 28 days or 5.6 weeks holiday if when they do work, they work five days a week, regardless of how many weeks are worked in a year.

This approach means some part-year workers are in a more favourable position than full-time workers or part-time workers who work the same number of hours across the year, but work fewer hours each week consistently during that time.

The Government is seeking views from stakeholders on introducing legislation to combat this disparity and ensure that holiday entitlement is directly proportionate to the hours worked. The consultation proposes holiday entitlement for part-year and irregular hours workers be calculated using the following steps:

  1. Calculate the total hours a worker has worked in the previous 52 week leave year (the reference period), including those weeks without work. Currently, any weeks without work are excluded from the reference period.
  2. Multiply the total hours worked by 12.07% to give the worker’s total annual statutory holiday entitlement in hours. 5.6 weeks represents 12.07% of the total working year.

The Government believes that this approach provides clarity for both employers and workers, who will have a fixed amount of annual leave agreed at the beginning of each leave year.

The consultation also includes proposals for calculating holiday entitlement for agency workers as 12.07% of hours worked at the end of each month of an assignment or at the end of an assignment (if shorter than a month).

Further details of the proposals can be found here:

The consultation closes on 9 March 2023.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.