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Earlier this month, the Government launched a consultation on calculating holiday entitlement for part-year and irregular-hours workers. This follows last year’s Supreme Court decision in Harpur Trust v Brazel, about holiday pay calculation for workers engaged on a permanent contract of employment and working irregular hours or for only part of the year - click here to read the briefing prepared by RPC LLP on this.

Please see below the list of relevant questions for members (please note that questions 16 to 21 follow the below format):

  • Strongly agree  
  • Agree
  • Neither agree nor disagree
  • Disagree
  • Strongly disagree
  • Don’t know
  • Please explain your answer

14. For employers: If you employ workers with irregular hours, how do you calculate their holiday entitlement?

16. For employers: Would you agree that the information you currently collect to calculate holiday pay would be sufficient to calculate holiday entitlement using a reference period?

17. Do you agree that including weeks without work in a holiday entitlement reference period would be the fairest way to calculate holiday entitlement for a worker with irregular hours and part-year workers?

18. Would you agree that a fixed holiday entitlement reference period would make it easier to calculate holiday entitlement for workers with irregular hours?

19. Do you agree that accruing holiday entitlement at the end of each month based on the hours worked during that month would be the fairest way to calculate holiday entitlement for workers on irregular hours in their first year of employment?

20. Would you agree that using a flat average working day would make it easier to calculate how much holiday a worker with irregular hours uses when they take a day off?

21. Would you agree that calculating agency workers’ holiday entitlement as 12.07% of their hours worked at the end of each month whilst on assignment would make it easier to calculate their holiday entitlement and holiday pay?

22. Do you have any further comments about calculating holiday entitlement for agency workers? Please explain your answer.

The decision from the Supreme Court means that part-year workers who work the same total number of hours across the year receive a larger annual paid holiday entitlement than they’d get as part-time workers.  

Government is now keen to address the disparity in holiday pay calculations for proportion to time spent working, and how the Supreme Court decision is impacting different sectors and agency workers. 

The intention is to ensure that holiday entitlement and pay is directly proportionate to time spent working. The idea is to enable employers to pro-rate holiday entitlement for part-year workers and workers with irregular hours in accordance with hours worked. This would be calculated in proportion to time spent working over the previous 52 weeks, the “holiday reference period”, which would also include weeks in which workers perform no work.

The deadline for submission is 9 March 2023 and the BRC will submit a response.

To inform our response, we will host the February HR Technical call a few weeks earlier than usual, on Tuesday, 7 February (1pm-2pm, MS Teams). The goal of the call is to hear your views and concerns to inform a first draft response. We strongly recommend that you join the call to share your position on this.

Please email luiza.gomes@brc.org.uk to receive the teams invite for the call.

Please come prepared to discuss the questions above on 7 February or share your responses in writing with luiza.gomes@brc.org.uk.