The Employment and Support Allowance Regulations (Northern Ireland) 2016

Earnings of employed earners

80.—(1) Subject to paragraphs (2) and (3), “earnings” means, in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes—

(a) any bonus or commission;

(b) any payment in lieu of remuneration except any periodic sum paid to a claimant on account of the termination of the claimant’s employment by reason of redundancy;

(c) any payment in lieu of notice;

(d) any holiday pay except any payable more than 4 weeks after the termination or interruption of employment;

(e) any payment by way of a retainer;

(f) any payment made by the claimant’s employer in respect of expenses not wholly, exclusively and necessarily incurred in the performance of the duties of the employment, including any payment made by the claimant’s employer in respect of—

(i) travelling expenses incurred by the claimant between the claimant’s home and place of employment,

(ii) expenses incurred by the claimant under arrangements made for the care of a member of the claimant’s family owing to the claimant’s absence from home;

(g) any award of compensation made under Article 146(4) or 151(3)(a) of the Employment Rights Order(1) (the remedies: orders and compensation enforcement of order and compensation);

(h) any payment made or remuneration paid under Article 60, 66, 96, 100 or 102 of the Employment Rights Order (right to guarantee payments, remuneration on suspension on medical or maternity grounds, complaints to industrial tribunals);

(i) any such sum as is referred to in section 112(3) of the Contributions and Benefits Act(2) (certain sums to be earnings for social security purposes);

(j) where a payment of compensation is made in respect of employment which is part-time employment, the amount of the compensation;

(k) the amount of any payment by way of a non-cash voucher which has been taken into account in the computation of a person’s earnings in accordance with Part 5 of Schedule 3 to the Social Security (Contributions) Regulations 2001(3);

(l) any payment made under the legislation of, or under any scheme operating in, the Republic of Ireland which is analogous to any income to which this paragraph relates.

(2) “Earnings” are not to include—

(a) subject to paragraph (3), any payment in kind;

(b) any remuneration paid by or on behalf of an employer to the claimant in respect of a period throughout which the claimant is on maternity leave, paternity leave, adoption leave (which means a period of absence from work on ordinary or additional adoption leave under Article 107A or 107B of the Employment Rights Order (4)), shared parental leave under Article 107E or 107G of that Order or is absent from work because the claimant is ill;

(c) any payment in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment;

(d) any occupational pension (which means any pension or other periodical payment under an occupational pension scheme but does not include any discretionary payment out of a fund established for relieving hardship in particular cases);

(e) any lump sum payment made under the Iron and Steel Re-adaptation Benefits Scheme(5);

(f) any payment in respect of expenses arising out of the claimant participating as a service user.

(g) any bounty paid at intervals of at least one year and derived from employment as—

(i) an auxiliary coastguard in respect of coast rescue activities;

(ii) a person engaged part-time in the manning or launching of a lifeboat;

(iii) a member of any territorial or reserve force prescribed in Part 1 of Schedule 6 to the Social Security (Contributions) Regulations 2001(6).

(3) Paragraph (2)(a) is not to apply in respect of any non-cash voucher referred to in paragraph(1)(k).

(4) In this regulation—

“compensation” means any payment made in respect of, or on the termination of, employment in a case where a claimant has not received or received only part of a payment in lieu of notice due or which would have been due to the claimant had that claimant not waived the right to receive it, other than—

(a)

any payment specified in paragraph (1)(a) to (i) or (l);

(b)

any payment specified in paragraph (2)(a) to (f);

(c)

any redundancy payment within the meaning of Article 170(1) of the Employment Rights Order; and

(d)

any refund of contributions to which that person was entitled under an occupational pension scheme;

“paternity leave” means a period of absence from work on paternity leave by virtue of Article 112A or 112B(7) of the Employment Rights Order.

(5) The reference in paragraph (2)(f) to a person participating as a service user is to—

(a) a person who is being consulted by or on behalf of—

(i) a body which has a statutory duty to provide services in the field of health, social care or social housing, or

(ii) a body which conducts research or undertakes monitoring for the purpose of planning or improving such services,

in the person’s capacity as a user, potential user, carer of a user or person otherwise affected by the provision of those services;

(b) a person who is being consulted by or on behalf of—

(i) the Department in relation to any of the Department’s functions in the field of social security or child support or under section 1 of the Employment and Training Act(8) (general functions of the Department as to employment and training for employment), or

(ii) a body which conducts research or undertakes monitoring for the purpose of planning or improving such functions,

in their capacity as a person affected or potentially affected by the exercise of those functions or the carer of such a person; or

(c) the carer of a person consulted under sub-paragraphs (a) or (b).

(1)

Article 146(4) was amended by Schedule 9 to the Employment Relations (Northern Ireland) Order 1999 (S.I. 1999/2790 (N.I. 9)) and paragraph 2(6) of Schedule 5 to the Employment (Northern Ireland) Order 2003 (S.I. 2003/2902) (N.I. 15)) and Article 151(3) was amended by Article 32(2) of, and Schedule 9 to, the Employment Relations (Northern Ireland) Order 1999 and paragraph 2(6) of Schedule 5 to the Employment (Northern Ireland) Order 2003

(2)

Section 112(3) was amended by Schedule 1 to the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919) (N.I. 16))

(3)

S.I. 2001/1004

(4)

Articles 107A and 107B were inserted by Article 3 of the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2)) and Articles 107E and 107G were inserted by section 2(2) of the Work and Families Act (Northern Ireland) 2015 (c. 1)

(5)

See the Schedule to S.I. 1996/3182

(6)

S.I. 2001/1004

(7)

Articles112A and 112B were inserted by Article 4 of the Employment (Northern Ireland) Order 2002 (S.I. 2002 No. 2836 (N.I. 2))

(8)

1950 c. 29 (N.I.); section 1 was amended by Article 3 of the Employment and Training (Amendment) (Northern Ireland) Order 1988 (S.I. 1988/1087 (N.I. 10)) and Article 5 of the Industrial Training (Northern Ireland) Order 1990 (S.I. 1990/1200 (N.I. 8))