Part-year workers holiday pay entitlement

In the Supreme Court case of Harpur Trust v Brazel (2022) UKSC 21, an important appeal
was raised on the issue of statutory leave requirements for part-year workers. To clarify
part-year employees are those with ongoing contracts who work a variety of hours only
during certain weeks of the year.

The facts were that Mrs Brazel, a music teacher at a school, run by the Harpur Trust, was
employed on a permanent contract but for term times only. Mrs Brazel was accepted as a
worker by Harpur Trust, and as such, she was entitled to 5.6 weeks of paid annual leave per
year, provided she took her annual leave during the school holidays, when she was not
required to teach. However, Harpur Trust argued that to account for the weeks not worked,
a part-year employees holiday entitlement needed to be further pro-rated. This was the
reasoning behind Harpur Trust changing its way of calculating her holiday pay to the
percentage method of calculating her pay according to 12.07 of her usual pay. The new
calculation meant that Mrs Brazel was essentially being paid less than she had previously

The Supreme Court rejected the trust’s claims and confirmed that part-year employees,
regardless of their working hours and regardless of the proportion of each year they work,
are fully entitled to the 5.6 weeks of vacation time. Additionally, their holiday pay must be
based on the calendar week method of averaging a week’s working hours. Since there was
no provision in the Working Time Regulation of 1998 allowing for pro-rated holiday
entitlement for part-year employees.

The Supreme Court acknowledged that this approach favoured workers who work unusual
hours, but it does not result in an irrational outcome that necessitates a complete overhaul
of the legal framework. Furthermore, the Supreme Court found several flaws in the Harpur
Trust’s proposed methods of pro-rating a part-time worker, which would have necessitated
complicated calculations, requiring all employers to keep detailed records of every hour
worked, even if they are not paid on an hourly basis.

Thus, the decision only impacts workers engaged in permanent part-year contracts.
Particularly the education sector, where many individuals work term time only, e.g.,
teachers with irregular hours or those in the education sectors. As a result of this Supreme
Court ruling, potentially employers could face claims of unlawful deduction from wages,
which could go back up to two years.

It should be noted that the average casual worker on a zero-hour contract will be
unaffected, as they will only be entitled to paid vacation based on the number of weeks
worked. Moreover, part-time employees who work 52 weeks a year but for fewer hours or
days than full-time employees can also have their vacation calculated pro rata. Furthermore,
it does not affect fixed-term employees, whose holidays will continue to be calculated pro-
rata for the duration of the contract.

London Legal Walk 2022

Well done to our team who took part in the London Legal Walk yesterday to raise much needed funds for free legal services.  Access to such legal services is crucial right now with more people hitting the poverty line so our team where only too happy to do all they could to raise much needed funds.

The weather held out beautifully and the event was back to pre-pandemic proportions making it even more enjoyable for all.  Our team walked from The Law Society building in London, down the embankment, past St James’ park and the palace and through Hyde Park and back round again taking in some beautiful sights.  A much needed drink was had at the street party afterwards.

Donations are still being accepted and would be gratefully received on;
Here’s to next years’ event!


Planes, Trains and Automobiles

With a week (if not more!) of travel disruption looming; tube strikes, train strikes, and even delays on flights over the summer period, these will all affect employers and employees alike.  But what can employers do in these situations?


The starting point for all parties concerned is discussing and being upfront about the potential problems each can foresee due to the upcoming disruptions.  Employers will need to ensure the business is able to continue but must accept problems will inevitably arise.  These can be planned for in advance by considering alternatives.  Working from Home is an obvious example for those that are able and whose business permits, but many businesses are unable to accommodate that.  Altering shift patterns during strikes or even pre-booking taxis or a hotel nearby for certain members of staff may be other options to consider.


Employers would also have the option to enforce annual leave for employees who will be unable to attend work.  However, employers should bear in mind this will be an unpopular option, albeit perfectly legal.


There are no specific legal requirements governing what businesses must do in these situations – the onus is in fact on the employee to get to work.  If an employee does not show up for work, it is classed as an unauthorised absence and an employee will not be entitled to be paid.  However, disciplining an employee for failure to attend when the situation is out of their control is also likely to be considered unreasonable.


Ideally, employers should have a policy in place for dealing with travel disruptions. Such a travel policy would cover when employees will/will not be paid so that expectations can be managed, the steps you expect them to take in such situations (i.e. making clear annual leave may be enforced) and can provide other options to be considered.  A travel policy is highly likely to reduce the risk of disputes arising between employers and employees however, so is always advisable – especially when such strikes look set to continue over a prolonged period.


For any assistance with this or other employment law matters, please contact out Head of Employment, Ilinca Mardarescu.

Musk, Twitter and the EU – a fight waiting to start?

Elon Musk recently made headlines yet again in relation to a potential $44bn deal to take Twitter private. As part of this, he has plans to remove what he sees as limits to free speech on the platform.


Should the deal go through, and should Musk stick to his plans to scale back Twitter’s moderation policies, he will be set on a collision course with the EU, who recently introduced new laws requiring big tech companies to take a more active stance on tackling hate speech, misinformation, and illegal activities on their platforms. The penalty for not complying with these new, tougher rules is a substantial fine going up to 20% of global annual turnover for repeat offences.


With Musk describing himself as a ‘free speech absolutist’, and the EU taking the stance that free speech, and democracy in general, work better when aggression and misinformation are more tightly regulated, there is a large legal and ideological dispute brewing. In the case of Musk, Twitter and the EU, it is likely to hinge around the limits of free speech and the protection of users. The results of this, if and when it happens, will have a significant impact on how digital regulations of this kind are rolled out around the world, and on how we interact with each other in this digital world.


However, this issue of free speech is only one of a number of legal challenges that the EU is bound to face in the wake of their new legislation. To find out more about these new laws coming into force and how they may affect you, take a look here.

Europe takes on the tech giants

Last week, the European Union passed two new laws to regulate big tech companies: the Digital Markets Act and the Digital Services Act. This new legislation represent arguably the biggest set of changes to the online world since the GDPR laws.


Fortunately, unlike the GDPR changes, these do not require substantial efforts from all businesses in the way they operate.  Crucially, the Acts are only directly relevant to companies whose main services are provided online.  Additionally, small tech companies will be spared the costliest of obligations, with only the largest companies (with a user base of at least 45 million across Europe) having to deal with the toughest regulations. These companies are identified in the Digital Markets Act as ‘Gatekeepers’, which often have interlocking services that work together to prevent users from branching out to other potential service providers, and which are capable of easily crushing smaller competitors in the marketplace. Think the likes of Amazon, Apple, Google and Meta.


At this point you might be thinking, “Ok that’s great, but why does it affect me? We’re no longer in the EU”. That is correct, and big tech companies are not going to start applying the rules to themselves voluntarily outside the EU.  However, it is likely that similar laws will be passed in a number of countries around the world following the example of Europe. This is what happened in many cases following GDPR. At this stage, it is impossible to know exactly what form a UK version of the new legislation may take, or when it will go through parliament, but it is likely to be similar to the EU version.


So, what do we have to look forward to?


For starters, the measures promise a safer and more pleasant experience for users; making it easier to report misinformation or dishonest products being sold online. They also make it easier to use services from other providers which may provide users with better value or a better experience. This includes being able to uninstall pre-installed software or apps on devices should they wish to.


For businesses, the main benefits are going to be felt by small enterprises and start-ups, as they are exempt from costs and are protected from unfair anti-competitive practices. They also benefit from the legal certainty of how Gatekeeper companies will interact with them and the terms on which they can make use of their services. This means that a business that allows users to do something as simple as creating a login using Google or Facebook could stand to benefit from the Acts.  Another benefit is the proposed system which will allow businesses to flag illegal content and goods that affect their rights, including their intellectual property.


Clearly, there will be a cost to all this. But it is one that is effectively borne by some of the largest and wealthiest companies in the world. In exchange, we get a system that will theoretically promote innovation, user choice, and fairer business practices. As for whether the Digital Market Act and Digital Services Act live up to these ambitions or not remains to be seen.  Undoubtedly however, the Gatekeeper companies most affected by these regulations will not simply accept these changes quietly.  We can anticipate years of litigation between them and the EU which will test to see how far the regulations can be pushed, the results of which will undoubtedly shape future legislation in this sector all over the world.

P&O Ferries – the importance of obtaining legal advice

Since last week, P&O Ferries has been all over the headlines for seemingly all the wrong reasons. Their mass sacking of 800 staff without following the correct procedure of going through a proper consultation period, with the intention of hiring cheaper, non-UK workers instead, was met with outrage at the blatant breach of UK law.  Yet they seem set to get away with it, as government ministers and newspapers condemn the actions while simultaneously acknowledging that it seems there is little they can do.  In return, the ferry company has substantially reduced its operating costs in a matter of days, potentially saving the business many thousands of pounds.

This is not luck.

Thorough and detailed legal advice would have been sought, and a quick and comparatively cheap solution provided. This solution drew on the fact that substantial parts of the company operated in international waters or were registered overseas, minimising the influence of UK employment laws. The suddenness of the move also meant that no union action could take place to delay or draw out the process, again keeping costs down. The settlement packages offered to the employees have also proved effective, as they are reasonably generous, and the vast majority of the workers have accepted them, seeing settling as preferable to a protracted legal challenge which could leave them with nothing.

This style of approach clearly has potential advantages for companies needing to cut costs quickly, but it is undoubtedly also a high-stakes gamble. One which P&O Ferries may yet lose.

Public relations and brand image form a significant part of the worth of a company. They have a value, albeit one that is hard to quantify, and they contribute significantly to the success and failure of a company.

The public outcry against P&O Ferries has been huge, and while the company’s move has increased their money-making potential in the short term, they may well have paid for this in the long-term by sacrificing their public image. Only time will tell.

P&O Ferries may have flown too close to the sun with their dismissals. However, it is possible that had this been done on a smaller scale and attracted less public attention, it may well have flown completely under the radar, leaving the company’s brand unscathed and with a healthier bottom line.

The brazenness of their move has rightly prompted calls for a review of employment laws. As we have seen, this area is already a potential minefield for employers and employees alike, and may well change soon in light of recent events. Expert and up-to-date legal advice is therefore crucial for knowing your rights and making sound business decisions.

Charters School Careers Fair – Friday 18 March 2022

This month, Aston Bond attended the Charters School careers fair. This was a great opportunity to help the year 9 to 13’s in deciding their next steps in life.

We talked to lots of students throughout the day about what day to day life is like for a solicitor in law firm, and the routes to qualifying as a solicitor with the introduction of the Solicitors Qualifying Exams (the ‘’SQE’’).  The SQEs are the new form of exams you must now take to qualify as a solicitor. Many students were especially surprised to learn you do not need a law degree to qualify as a solicitor. Students gained a lot of useful tips on what to do during your route to qualifying as a solicitor, such as getting lots of work experience! Students learned the difference between solicitors and barristers and we sat on the panel of a number of Q&A sessions  at which students had the opportunity to ask us questions.  They also got to learn lots about the general balance of working life, not only for solicitors but from other career representatives which attended the fair.

We were so impressed by the enthusiasm, interest and the warm welcome we received from all at Charters School and hope to visit again soon.


Change ahead – Reforms on Pre-Action Conduct

What you need to do before you take matters to court

Before anyone can bring a claim to the UK Civil Courts, there are certain steps that must be taken to demonstrate to the court that you have taken reasonable action to try and resolve things yourself. These steps are called Pre-Action Protocols and are intended to ‘’explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings’’.

If your dispute has no case-specific Pre-Action Protocol, then the Practice Direction Pre-action Conduct applies. There are specific Pre-Action Protocols for various types of claims such as:

  • Pre-Action Protocol for Personal Injury Claims
  • Pre-Action Protocol for the Construction and Engineering Disputes


What happens if I haven’t completed these steps?

There can potentially be serious consequences for both claimants and defendants for failing to comply with the Pre-action Conduct and Protocols or any relevant protocol to a claim. These can include the Court not allowing your claim to progress further until there has been compliance, and you may also incur additional cost penalties.


The future of Pre-Action Protocols

In November 2021 the Civil Justice council (CJC) considered a review of the Pre-Action Protocols, thinking about the role Pre-Action Protocols should play in the civil justice system in the 2020s particularly in a justice system which is increasingly digitalising.

Three major reforms considered are:

  • Making all Pre-Action Protocols available online via portals

This would also include ensuring the portals are electronically joined up to the relevant court so that non-confidential pre-action exchanges, including pre-action letters of claim and replies would be accessible to the court if the matter progresses to litigation.

Linking online portals on pre-action compliance to digital court process will allow the courts to have access to the pre-action correspondence and documents exchanged between parties and may also be able to provide parties with a secure platform in which they can freely explore settlement options.


  • Introducing a good faith obligation

This would try to resolve or narrow the dispute at the pre-action stage. Options for a good faith obligation could include engaging in formal alternative dispute resolution (ADR) processes, informal negotiations between the parties, or formal settlement offers.

Does the introduction of compulsory ADR conflict with Article 6 (the right to a fair trial) of the European Convention on Human Rights? The future obligation of compulsory ADR must provide a balance of being able to effectively resolve disputes with the option of being able to return to the normal court process. The CJC believe the civil justice system is far off from being able to offer regulated and timely ADR processed to all prospective litigants, and until they are available, any good faith obligation to resolve a pre-litigation dispute should be non-regulatory.


  • Formally recognising compliance would be mandatory with Pre-Action Protocols

Compliance could become mandatory except in urgent cases where immediate court action is necessary.

Extending the courts power for compliance issues will enable a more consistent and timely approach to non-compliance with Pre-Action Protocols. For example, the current Practice Direction on Pre-Action Protocol expressly gives the court power when considering a costs order to consider if there has been an unreasonable offer to refuse a form of ADR. However, there is inconsistency case by case in the way in which the courts apply this power.

The CJC have suggested formalising the process for raising compliance issues by introducing a separate directions questionnaire on compliance or requiring parties to apply to the court for sanctions to be imposed for non-compliance. It has also been suggested a decision by the courts on whether to impose a sanction should be taken at the start of proceedings rather than the end.


Revolutionary or evolutionary?

The reforms build on the existing rules and procedures set out in the current Pre-Action Protocols. However, the proposed reforms attempt to provide more concrete guidance, consistency and accessibility with the integration of technology for pre-litigation matters. Encouragement of early exchange of information and settlement is greater than before with the mandatory use of online protocol portals and a form of ADR before a claim could be bought.

Help to Build

We are all familiar with Help to Buy – a government-backed scheme which helps first time buyers purchase a new-build home with just a 5% deposit. However, it is now time to become familiar with Help to Build.

Unlike Help to Buy, Help to Build aims to help those seeking to commission or build their own home and helps builders with cash flow during the build. More and more individuals have ambitions to build their own home, as they have the freedom to decide on the design, internal layout and location. The main barrier to doing so however, being finding the money to fund the project. Help to Build aims to eradicate this barrier so that these ambitions are achievable and self-build homes are more accessible and affordable.

What is Help to Build?

Help to Build is a new government equity loan, announced back in April 2021, that will be available to people in England who want to custom build or self-build their own home.

An equity loan is offered, between 5% and 20% (up to 40% in London), based on the total estimated costs to buy a plot of land and build the home. If eligible, up to £600,000 can be spent on the new home, which must include the cost of the land if not already owned and no more than £400,000 on the cost to build. The loan is interest free for five years.

A minimum of a 5% deposit will be needed and a self-build mortgage, which must be provided by a lender registered with Help to Build. Funds will be released at various stages of the build until the build is complete, at which point the mortgage will automatically switch to a repayment mortgage which must be in place for the duration of the equity loan, normally 25 years.

The redemption amount is based on the value of the home at the time chosen to repay and is not linked to the amount initially borrowed. Therefore, if the market value of the home increases above the estimated land and build costs, the amount owed on the loan will increase and vice versa if the market value decreases.

If the equity loan is offered, the purchase of the land (if needed) and the build of the home must complete within a span of 3 years.

Who is eligible?

Anyone who is 18 years of age or over and has a right to live in England, the newly built home will be their only home and they have secured a self-build mortgage from a lender registered with Help to Build.

Application Process

The scheme is still in the initial stages and relatively new. Whilst it was previously believed that applications will open for Help to Build last year during winter, it does not appear this was the case. However, while the exact date has not yet been announced, it is only a matter of time before the scheme is up and running. To be first in line for more information, register your interest in Help to Build here.

For further information on the Help to Build: Equity Loan scheme, please click here to be redirected to the page.

Video Witnessing Will Signings Extended To 2024

Under Section 9 of the Wills Act 1837, there should always be two witnesses present during the physical signing of the Will with the testator (the person who has made the Will). The witnesses would also be required to sign the Will in the testator’s presence to validate the document. These rules have been key pillars in the process of validating a Will until the Covid-19 pandemic brought about unprecedented change. As the death rates began to increase, restrictions were put in place by the government, which lead to the elderly population being forced into self-isolation. Suddenly, the need for valid Wills to be made in a timely and efficient manner became a priority.

As a result, new legislation was introduced in 2020 broadening the definition of the witnesses needing to be “in the presence of”, to include video conferencing and “other visual transmission”. This was subsequently backdated to January 2020 and kept in place until January 2022. The government has recently announced that it has extended the legislation till January 2024.

So, why has this legislation been extended when only 14% of solicitors who drafted Wills during lockdown took part in remote witnessing? According to reports from the Law Society, the option to remote witness has proved helpful amongst vulnerable people who need to set their affairs in order and cannot afford to do so in a physical capacity. This legislation was created to support those who are isolating, vulnerable or incapacitated by further restrictions, and has seemingly achieved this goal. However, “video conferencing” to witness and validate a Will is not without its complications.

One of the risks a solicitor must be aware of is that the testator could lose their mental capacity to validate the Will over time. If the testator is not in a proper capacity to sign their Will, it would be difficult to tell this through a screen. There could also be a chance that undue influence is at play by someone off-camera and out of sight during the signing. Unfortunately, there is no concrete way of confirming that the testator is alone and/or uninfluenced over a video call.

There is also a risk of documents going missing in the post. A Will is only valid once it is signed by the testator and both witnesses. If the Will is lost in the post before being signed by the witnesses it will need to be re-signed, causing unnecessary delays. If there is a delay between the testator and the witnesses’ signings, there is a high probability that the testator (especially a vulnerable person) could die before the Will is completed.

It is important to note that although video witnessing is a legal method to validate your Will, it is not the most secure. There is a potential risk of fraud. If a third party posts or delivers the Will, there is a risk they could replace certain pages or the Will in its entirety. The Ministry of Justice (MOJ) have also stressed that the “the use of video technology should remain a last resort, and people must continue to arrange physical witnessing of wills where it is safe to do so.” There are several ways in which Wills can be witnessed, such as witnessing through a window, carpark witnessing or from another room in the property.

Here at Aston Bond, we believe validating any Will is a matter of great importance and for that reason we encourage signing your Wills in person at our offices or via a home visit. It is imperative to confirm that the testator has full mental capacity and is not being coerced or pressured to sign the Will in any way. We would recommend that other options should be explored before relying on video witnessing.

For more information on making valid Wills through using video conferencing, you can check out:

If you have any queries, please do not hesitate to contact myself at or Rachel Jones at