Harpur Trust v Brazel

Press Summary     Issues & Facts

Hilary Term

[2022] UKSC 21

On appeal from: [2019] EWCA Civ 1402

JUDGMENT

Harpur Trust (Appellant)

 v  

Brazel (Respondent)

before

Lord Hodge, Deputy President

Lord Briggs

Lady Arden

Lord Burrows

Lady Rose

JUDGMENT GIVEN ON

20 July 2022

Heard on 9 November 2021

Appellant

Caspar Glyn QC

Nathan Roberts

Catherine Meenan

(Instructed by VWV Solicitors LLP (Bristol))

Respondent

Mathew Gullick QC

Lachlan Wilson

Naomi Webber

(Instructed by Hopkins Solicitors LLP (Nottingham))

Intervener (UNISON)

Michael Ford QC

Mathew Purchase QC

(Instructed by UNISON Legal Services (London))

lady rose and lady arden (with whom Lord Hodge, Lord Briggs and Lord Burrows agree):

1.         Overview of the issue of law arising on this appeal

1. This appeal raises an important issue about the statutory leave requirement for part-time workers who may also be described as part-year workers, namely workers who work for varying hours during only certain weeks of the year but have a continuing contract throughout that year. These workers neither work the full number of hours worked by full time workers nor the full number of weeks worked by part-time workers. Their work is irregular. The issue is whether their leave entitlement is calculated on the same principle, proportionally, as full-time employees (which would mean that the weeks that they do not work reduce their entitlement) or whether their leave must be calculated ignoring those weeks. The latter would leave them with an entitlement which proportionally exceeds that of other employees. Nonetheless, the Court of Appeal held that the proper construction of the domestic law led to that result and further that such a construction was consistent with the applicable EU law.
2. Prior to the UK’s withdrawal from the European Union, the statutory leave requirement was governed by the EU Council Directive 2003/88/EC generally referred to as the Working Time Directive (“the WTD”), and its predecessor, which were implemented in the United Kingdom by, in particular the Working Time Regulations 1998 (SI 1998/1833) (“the WTR”), which also conferred additional rights. The WTD was adopted pursuant to article 137 of the Treaty Establishing the European Community (“article 137 EC”), now article 153 of the Treaty on the Functioning of the European Union. Article 137(2) EC empowered the Council to adopt directives setting minimum requirements for working conditions for gradual implementation by the member states. The obligation to implement the WTD and its predecessor was satisfied in the United Kingdom by the WTR. The WTR, as amended (inter alia) in 2007, provide that as from 1 April 2009 workers are entitled to 5.6 weeks’ leave (or 28 days, whichever is less) rather than the four weeks provided for by the WTD. The additional 1.6 weeks is conferred only by UK law. The WTR were made under section 2(2) of the European Communities Act 1972 and they are preserved in UK law by section 2 of the European Union (Withdrawal) Act 2018 (“the Withdrawal Act”). They are therefore “retained EU Law” as defined by section 6(7) of that