CHAPTER 4SEmployed earners
Earnings of employed earnersS
34.—(1) Subject to paragraph (2), “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 an applicant on account of the termination of the applicant's employment by reason of redundancy;
(c)any payment in lieu of notice or any lump sum payment intended as compensation for the loss of employment but only in so far as it represents loss of income;
(d)any holiday pay except any payable more than 4 weeks after termination or interruption of the employment;
(e)any payment by way of a retainer;
(f)any payment made by an applicant'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 applicant's employer in respect of—
(i)travelling expenses incurred by the applicant between the applicant's home and place of employment; or
(ii)expenses incurred by the applicant under arrangements made for the care of a member of the applicant's family owing to the applicant's absence from home;
(g)any award of compensation made under section 112(4) or 117(3)(a) of the Employment Rights Act 1996 M1 (remedies and compensation for unfair dismissal);
(h)any payment or remuneration made under section 28, 34, 64, 68 or 70 of the Employment Rights Act 1996 M2 (right to guarantee payments, remuneration on suspension on medical or maternity grounds, complaints to employment tribunals);
(i)any such sum as is referred to in section 112 of the 1992 Act M3 (certain sums to be earnings for social security purposes);
(j)any statutory sick pay, statutory maternity pay, ordinary or additional statutory paternity pay or statutory adoption pay, or a corresponding payment under any enactment having effect in Northern Ireland;
(k)any remuneration paid by or on behalf of an employer to an applicant who for the time being is on maternity leave, paternity leave or adoption leave or is absent from work because the applicant is ill; and
(l)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 M4.
(2) Earnings do not include—
(a)subject to paragraph (3), any payment in kind;
(b)any payment in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment;
(c)any occupational pension; or
(d)any payment in respect of expenses arising out of the applicant's participation in a service user group.
(3) Paragraph (2)(a) does not apply in respect of any non-cash voucher referred to in paragraph (1)(l).
Marginal Citations
M1Section 112(4) was amended by paragraph 36 of Schedule 7 to the Employment Act 2002 (c.22) and Schedule 9 to the Employment Relations Act 1999 (c.26). Section 117(3)(a) was amended by paragraph 37 of Schedule 7 to the Employment Act 2002.
M2Sections 34 and 70 were amended by section 1 of the Employment Rights (Dispute Resolution) Act 1998 (c.8) and S.I. 2011/1133. Section 64 was amended by S.I. 1999/3232.
M3Section 112 was amended by paragraph 21 of Schedule 3 to the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2) and paragraph 51 of Schedule 1 to the Employment Rights Act 1996 (c.18).
M4S.I. 2001/1004. Part 5 of Schedule 3 was amended by section 46 of the Finance Act 1988 (c.39), section 89 of the Finance Act 1994 (c.9), Schedule 13 to the Finance Act 2004 (c.12), sections 60 and 62 of the Finance Act 2006 (c.25), S.I. 2001/2412, 2002/307, 2003/2958, 2004/770, 2005/778, 2006/883 and 2003, 2007/2091, 2008/607, 2009/600, and 2011/1000.
Calculation of net earnings of employed earnersS
35.—(1) For the purposes of regulation 29 (average weekly earnings of employed earners), the earnings of an applicant derived or likely to be derived from employment as an employed earner to be taken into account are, subject to paragraph (2), the applicant's net earnings.
(2) Any sum, where applicable, specified in Schedule 3 is to be disregarded when calculating an applicant's net earnings.
(3) For the purposes of paragraph (1) net earnings are, except where paragraph (6) applies, to be calculated by taking into account the gross earnings of the applicant from that employment over the assessment period, less—
(a)any amount deducted from those earnings by way of—
(i)income tax;
(ii)primary Class 1 contributions under the 1992 Act;
(b)one-half of any sum paid by the applicant by way of a contribution towards an occupational pension scheme;
(c)one-half of the amount calculated in accordance with paragraph (5) in respect of any qualifying contribution payable by the applicant; and
(d)where those earnings include a payment which is payable under any enactment having effect in Northern Ireland and which corresponds to statutory sick pay, statutory maternity pay, ordinary or additional statutory paternity pay or statutory adoption pay, any amount deducted from those earnings by way of any contributions which are payable under any enactment having effect in Northern Ireland and which correspond to primary Class 1 contributions under the 1992 Act.
(4) In this regulation “qualifying contribution” means any sum which is payable periodically as a contribution towards a personal pension scheme.
(5) The amount in respect of any qualifying contribution is to be calculated by multiplying the daily amount of the qualifying contribution by the number equal to the number of days in the assessment period; and for the purposes of this regulation the daily amount of the qualifying contribution is to be determined—
(a)where the qualifying contribution is payable monthly, by multiplying the amount of the qualifying contribution by 12 and dividing the product by 365; and
(b)in any other case, by dividing the amount of the qualifying contribution by the number equal to the number of days in the period to which the qualifying contribution relates.
(6) Where the earnings of an applicant are estimated under regulation 29(2)(b) (average weekly earnings of employed earners), the applicant's net earnings are to be calculated by taking into account those earnings over the assessment period, less—
(a)an amount in respect of income tax equivalent to an amount calculated by applying to those earnings the basic rate of tax applicable to the assessment period less only the personal relief to which the applicant is entitled under section 35(1) of the Income Tax Act 2007 M5 (personal allowance for those aged under 65) as is appropriate to the applicant's circumstances but, if the assessment period is less than a year, the earnings to which the basic rate of tax is to be applied and the amount of the personal relief deductible under this sub‑paragraph are to be calculated on a pro rata basis;
(b)an amount equivalent to the amount of the primary Class 1 contributions that would be payable by the applicant under the 1992 Act in respect of those earnings if such contributions were payable; and
(c)one-half of any sum which would be payable by the applicant by way of a contribution towards an occupational or personal pension scheme, if the earnings so estimated were actual earnings.
Marginal Citations
M52007 c.3 as amended by section 4(1) of the Finance Act 2009 (c.10) and S.I. 2011/2926.