Since the introduction of the Working Time Regulations in 1999, there has been much argument about how the law applies to people who do not work a standard 52-week year, or who may have variable hours (or indeed a so-called zero-hours contract).
At the Incorporated Society of Musicians (ISM), we have consistently challenged employers and the Government as to the correct interpretation of the Working Time Regulations 1998.
Our view has always been that the law is clear: there is an entitlement to at least 5.6 weeks' paid holiday per year. Holiday pay should be calculated upon the average paid to the worker over the previous 12 weeks (and any weeks when you did not work are not counted).
In practice, many employers have pro-rated payments for their part-time workers, paying 12.07% of annual earnings as holiday pay. This figure comes from viewing the standard working year of 52 weeks as comprising 46.4 working weeks and 5.6 weeks' of statutory holiday entitlement – 5.6 weeks equals 12.07% of 46.4 weeks.
We have always contended that this calculation is wrong. The law says quite simply that workers are entitled to 5.6 weeks’ paid holiday per year; it does not say this can be reduced pro rata according to the number of weeks worked in the year. Even if part-time workers have periods of unpaid leave during the year, it does not diminish in any way whatsoever their right to receive the 5.6 weeks' of paid leave provided for by the law.
A recent decision by the Employment Appeal Tribunal (EAT) has upheld a claim by an teacher on a variable hours contract that her holiday was incorrectly calculated, and in doing so, the EAT has effectively vindicated our position.
In this case – supported by the ISM from initial internal grievance hearing at the school, through the original employment tribunal and now to the EAT appeal – the pro rata provisions were applied to the member's holiday pay. The original tribunal dismissed the claim, upholding the employer's argument that pro rating was lawful.
The EAT disagreed, and allowed the teacher's appeal, agreeing with our interpretation of the Regulations. Even though the member worked irregular hours, and for fewer than 46.4 weeks in the course of the year, she was entitled, under the Regulations, to receive 5.6 weeks' paid holiday. In addition, the Employment Rights Act 1996 provided a simple way of determining a week's pay for the purposes of calculating the entitlement.
This is good news for those working on part-time or variable hours contracts.
If you have not been paid holiday pay or have been paid it incorrectly, it may be possible to claim some backdated holiday pay. You should take advice as quickly as possible. ISM members can contact our legal team for advice.
ISM/ISM Trust certificates for music
For the third year, the ISM and ISM Trust have honoured secondary schools across the UK for their commitment to music in the curriculum within their schools with an ISM/ISM Trust certificate for music.
These annual certificates, which are awarded by the ISM and supported by the ISM's sister charity ISM Trust, recognise not only the high level of uptake and attainment in GCSE music in secondary schools but the level of commitment that is shown to music as a subject in their school.
The certificates are awarded in three levels:
- 20% of the overall Key Stage 4 cohort in the school that achieve A*–C in GCSE music are awarded a Gold certificate
- 15% of the overall Key Stage 4 cohort in the school that achieve A*–C in GCSE music are awarded a Silver certificate
- 10% of the overall Key Stage 4 cohort in the school that achieve A*–C in GCSE music are awarded a Bronze certificate
The ISM and ISM Trust first released these certificates to secondary schools in England in 2016, and last year the schemes were extended to include schools in Wales and Northern Ireland. There are plans to extend this initiative to Scotland in the future.
