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Part XIVE+W+S Interpretation

Chapter IE+W+S Continuous employment

Modifications etc. (not altering text)

C1Pt. XIV Ch. I (ss. 210-219) applied (with modifications) (1.4.1998) by S.I. 1998/366, reg. 31(7)

Pt. XIV Ch. I (ss. 210-219) applied (prosp.) by 1999 c. 29, ss. 411(10), 425(2), Sch. 32 para. 3(8) (with Sch. 12 para. 9(1))

Pt. XIV Ch. I (ss. 210-219) applied (29.1.2001) by S.I. 2000/3386, art. 1(5)

Pt. XIV Ch. I (ss. 210-219) applied (E.W.) (21.5.2001) by S.I. 2001/1185, arts. 3, 4, Sch. para. 120

C2Pt. 14 Ch. 1 applied (1.10.2002) by The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 8(4) (with regs. 13-20)

Pt. 14 Ch. 1 applied (6.4.2002) by The Flexible working (Eligibility, Complaints and Remedies) Regulations 2002 (S.I. 2002/3236), {reg. 3}

C4Pt. 14 Ch. 1 applied (E.W.) (1.3.2007) by National Health Service Act 2006 (c. 41), ss. 30, 227, Sch. 7 para. 3(4)

210 Introductory.E+W+S

(1)References in any provision of this Act to a period of continuous employment are (unless provision is expressly made to the contrary) to a period computed in accordance with this Chapter.

(2)In any provision of this Act which refers to a period of continuous employment expressed in months or years—

(a)a month means a calendar month, and

(b)a year means a year of twelve calendar months.

(3)In computing an employee’s period of continuous employment for the purposes of any provision of this Act, any question—

(a)whether the employee’s employment is of a kind counting towards a period of continuous employment, or

(b)whether periods (consecutive or otherwise) are to be treated as forming a single period of continuous employment,

shall be determined week by week; but where it is necessary to compute the length of an employee’s period of employment it shall be computed in months and years of twelve months in accordance with section 211.

(4)Subject to sections 215 to 217, a week which does not count in computing the length of a period of continuous employment breaks continuity of employment.

(5)A person’s employment during any period shall, unless the contrary is shown, be presumed to have been continuous.

Modifications etc. (not altering text)

C5Ss. 210-219 applied (E.W.) (1.4.2020) by The Agricultural Wages (Wales) Order 2020 (S.I. 2020/347), arts. 1, 2(3)

211 Period of continuous employment.E+W+S

(1)An employee’s period of continuous employment for the purposes of any provision of this Act—

(a)(subject to [F1subsection] (3)) begins with the day on which the employee starts work, and

(b)ends with the day by reference to which the length of the employee’s period of continuous employment is to be ascertained for the purposes of the provision.

F2(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)If an employee’s period of continuous employment includes one or more periods which (by virtue of section 215, 216 or 217) while not counting in computing the length of the period do not break continuity of employment, the beginning of the period shall be treated as postponed by the number of days falling within that intervening period, or the aggregate number of days falling within those periods, calculated in accordance with the section in question.

Textual Amendments

Modifications etc. (not altering text)

C5Ss. 210-219 applied (E.W.) (1.4.2020) by The Agricultural Wages (Wales) Order 2020 (S.I. 2020/347), arts. 1, 2(3)

212 Weeks counting in computing period.E+W+S

(1)Any week during the whole or part of which an employee’s relations with his employer are governed by a contract of employment counts in computing the employee’s period of employment.

F3(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Subject to subsection (4), any week (not within subsection (1)) during the whole or part of which an employee is—

(a)incapable of work in consequence of sickness or injury,

(b)absent from work on account of a temporary cessation of work, [F4or]

(c)absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for any purpose, F5. . .

F3(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

counts in computing the employee’s period of employment.

(4)Not more than twenty-six weeks count under subsection (3)(a) F5. . . between any periods falling under subsection (1).

Textual Amendments

F4Word in s. 212(3)(b) inserted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 38(3)(a); S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)

Modifications etc. (not altering text)

C5Ss. 210-219 applied (E.W.) (1.4.2020) by The Agricultural Wages (Wales) Order 2020 (S.I. 2020/347), arts. 1, 2(3)

213 Intervals in employment.E+W+S

(1)Where in the case of an employee a date later than the date which would be the effective date of termination by virtue of subsection (1) of section 97 is treated for certain purposes as the effective date of termination by virtue of subsection (2) or (4) of that section, the period of the interval between the two dates counts as a period of employment in ascertaining for the purposes of section 108(1) or 119(1) the period for which the employee has been continuously employed.

(2)Where an employee is by virtue of section 138(1) regarded for the purposes of Part XI as not having been dismissed by reason of a renewal or re-engagement taking effect after an interval, the period of the interval counts as a period of employment in ascertaining for the purposes of section 155 or 162(1) the period for which the employee has been continuously employed (except so far as it is to be disregarded under section 214 or 215).

(3)Where in the case of an employee a date later than the date which would be the relevant date by virtue of subsections (2) to (4) of section 145 is treated for certain purposes as the relevant date by virtue of subsection (5) of that section, the period of the interval between the two dates counts as a period of employment in ascertaining for the purposes of section 155 or 162(1) the period for which the employee has been continuously employed (except so far as it is to be disregarded under section 214 or 215).

Modifications etc. (not altering text)

C5Ss. 210-219 applied (E.W.) (1.4.2020) by The Agricultural Wages (Wales) Order 2020 (S.I. 2020/347), arts. 1, 2(3)

214 Special provisions for redundancy payments.E+W+S

(1)This section applies where a period of continuous employment has to be determined in relation to an employee for the purposes of the application of section 155 or 162(1).

(2)The continuity of a period of employment is broken where—

(a)a redundancy payment has previously been paid to the employee (whether in respect of dismissal or in respect of lay-off or short-time), and

(b)the contract of employment under which the employee was employed was renewed (whether by the same or another employer) or the employee was re-engaged under a new contract of employment (whether by the same or another employer).

(3)The continuity of a period of employment is also broken where—

(a)a payment has been made to the employee (whether in respect of the termination of his employment or lay-off or short-time) in accordance with a scheme under section 1 of the M1Superannuation Act 1972 or arrangements falling within section 177(3), and

(b)he commenced new, or renewed, employment.

(4)The date on which the person’s continuity of employment is broken by virtue of this section—

(a)if the employment was under a contract of employment, is the date which was the relevant date in relation to the payment mentioned in subsection (2)(a) or (3)(a), and

(b)if the employment was otherwise than under a contract of employment, is the date which would have been the relevant date in relation to the payment mentioned in subsection (2)(a) or (3)(a) had the employment been under a contract of employment.

(5)For the purposes of this section a redundancy payment shall be treated as having been paid if—

(a)the whole of the payment has been paid to the employee by the employer,

(b)a tribunal has determined liability and found that the employer must pay part (but not all) of the redundancy payment and the employer has paid that part, or

(c)the Secretary of State has paid a sum to the employee in respect of the redundancy payment under section 167.

Modifications etc. (not altering text)

C5Ss. 210-219 applied (E.W.) (1.4.2020) by The Agricultural Wages (Wales) Order 2020 (S.I. 2020/347), arts. 1, 2(3)

C6S. 214 excluded (13.1.1997) by S.I. 1996/3147, reg. 4

Marginal Citations

215 Employment abroad etc.E+W+S

(1)This Chapter applies to a period of employment—

(a)(subject to the following provisions of this section) even where during the period the employee was engaged in work wholly or mainly outside Great Britain, and

(b)even where the employee was excluded by or under this Act from any right conferred by this Act.

(2)For the purposes of sections 155 and 162(1) a week of employment does not count in computing a period of employment if the employee—

(a)was employed outside Great Britain during the whole or part of the week, and

(b)was not during that week an employed earner for the purposes of the M2Social Security Contributions and Benefits Act 1992 in respect of whom a secondary Class 1 contribution was payable under that Act (whether or not the contribution was in fact paid).

(3)Where by virtue of subsection (2) a week of employment does not count in computing a period of employment, the continuity of the period is not broken by reason only that the week does not count in computing the period; and the number of days which, for the purposes of section 211(3), fall within the intervening period is seven for each week within this subsection.

(4)Any question arising under subsection (2) whether—

(a)a person was an employed earner for the purposes of the Social Security Contributions and Benefits Act 1992, or

(b)if so, whether a secondary Class 1 contribution was payable in respect of him under that Act,

shall be determined by [F6an officer of the Commissioners of Inland Revenue].

[F7(5)Part II of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (decisions and appeals) shall apply in relation to the determination of any issue by the Inland Revenue under subsection (4) as if it were a decision falling within section 8(1) of that Act.]

(6)Subsection (2) does not apply in relation to a person who is—

(a)employed as a master or seaman in a British ship, and

(b)ordinarily resident in Great Britain.

Textual Amendments

F6Words in s. 215(4) substituted (1.4.1999) by 1999 c. 2, s. 18, Sch. 7 para. 21(2); S.I. 1999/527, art. 2(b), Sch. 2

F7S. 215(5) substituted (1.4.1999) by 1999 c. 2, s. 18, Sch. 7 para. 21(3); S.I. 1999/527, art. 2(b), Sch. 2

Modifications etc. (not altering text)

C5Ss. 210-219 applied (E.W.) (1.4.2020) by The Agricultural Wages (Wales) Order 2020 (S.I. 2020/347), arts. 1, 2(3)

Marginal Citations

216 Industrial disputes.E+W+S

(1)A week does not count under section 212 if during the week, or any part of the week, the employee takes part in a strike.

(2)The continuity of an employee’s period of employment is not broken by a week which does not count under this Chapter (whether or not by virtue only of subsection (1)) if during the week, or any part of the week, the employee takes part in a strike; and the number of days which, for the purposes of section 211(3), fall within the intervening period is the number of days between the last working day before the strike and the day on which work was resumed.

(3)The continuity of an employee’s period of employment is not broken by a week if during the week, or any part of the week, the employee is absent from work because of a lock-out by the employer; and the number of days which, for the purposes of section 211(3), fall within the intervening period is the number of days between the last working day before the lock-out and the day on which work was resumed.

Modifications etc. (not altering text)

C5Ss. 210-219 applied (E.W.) (1.4.2020) by The Agricultural Wages (Wales) Order 2020 (S.I. 2020/347), arts. 1, 2(3)

217 Reinstatement after military service.E+W+S

(1)If a person who is entitled to apply to his former employer under the M3Reserve Forces (Safeguard of Employment) Act 1985 enters the employment of the employer not later than the end of the six month period mentioned in section 1(4)(b) of that Act, his period of service in the armed forces of the Crown in the circumstances specified in section 1(1) of that Act does not break his continuity of employment.

(2)In the case of such a person the number of days which, for the purposes of section 211(3), fall within the intervening period is the number of days between the last day of his previous period of employment with the employer (or, if there was more than one such period, the last of them) and the first day of the period of employment beginning in the six month period.

Modifications etc. (not altering text)

C5Ss. 210-219 applied (E.W.) (1.4.2020) by The Agricultural Wages (Wales) Order 2020 (S.I. 2020/347), arts. 1, 2(3)

Marginal Citations

218 Change of employer.E+W+S

(1)Subject to the provisions of this section, this Chapter relates only to employment by the one employer.

(2)If a trade or business, or an undertaking (whether or not established by or under an Act), is transferred from one person to another—

(a)the period of employment of an employee in the trade or business or undertaking at the time of the transfer counts as a period of employment with the transferee, and

(b)the transfer does not break the continuity of the period of employment.

(3)If by or under an Act (whether public or local and whether passed before or after this Act) a contract of employment between any body corporate and an employee is modified and some other body corporate is substituted as the employer—

(a)the employee’s period of employment at the time when the modification takes effect counts as a period of employment with the second body corporate, and

(b)the change of employer does not break the continuity of the period of employment.

(4)If on the death of an employer the employee is taken into the employment of the personal representatives or trustees of the deceased—

(a)the employee’s period of employment at the time of the death counts as a period of employment with the employer’s personal representatives or trustees, and

(b)the death does not break the continuity of the period of employment.

(5)If there is a change in the partners, personal representatives or trustees who employ any person—

(a)the employee’s period of employment at the time of the change counts as a period of employment with the partners, personal representatives or trustees after the change, and

(b)the change does not break the continuity of the period of employment.

(6)If an employee of an employer is taken into the employment of another employer who, at the time when the employee enters the second employer’s employment, is an associated employer of the first employer—

(a)the employee’s period of employment at that time counts as a period of employment with the second employer, and

(b)the change of employer does not break the continuity of the period of employment.

(7)If an employee of the [F8governing body] of a school maintained by a [F9local authority] is taken into the employment of the authority or an employee of a [F9local authority] is taken into the employment of the [F10governing body] of a school maintained by the authority—

(a)his period of employment at the time of the change of employer counts as a period of employment with the second employer, and

(b)the change does not break the continuity of the period of employment.

(8)If a person employed in relevant employment by a health service employer is taken into relevant employment by another such employer, his period of employment at the time of the change of employer counts as a period of employment with the second employer and the change does not break the continuity of the period of employment.

(9)For the purposes of subsection (8) employment is relevant employment if it is employment of a description—

(a)in which persons are engaged while undergoing professional training which involves their being employed successively by a number of different health service employers, and

(b)which is specified in an order made by the Secretary of State.

(10)The following are health service employers for the purposes of subsections (8) and (9)—

[F11(za)the National Health Service Commissioning Board,

(zb)a clinical commissioning group established under section 14D of the National Health Service Act 2006,]

F12(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)Special Health Authorities established under [F13section 28 of [F14the National Health Service Act 2006] or section 22 of the National Health Service (Wales) Act 2006] ,

F15( bb ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)National Health Service trusts established under [F16[F17the National Health Service Act 2006] or the National Health Service (Wales) Act 2006] ,

[F18(ca)NHS foundation trusts, ]

[F19(cb)Local Health Boards established under section 11 of the National Health Service (Wales) Act 2006,]

[F20(cc)the National Institute for Health and Care Excellence,]

[F21(cd)the Health and Social Care Information Centre,]

(d)F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(dd)F23...F24...

F24(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F25(11) In subsection (7) “ local authority ” has the meaning given by section 579(1) of the Education Act 1996. ]

Textual Amendments

F8Words in s. 218(7) substituted (1.10.2002 except in relation to W. and otherwise 19.12.2002) by Education Act 2002 (c. 32), s. 215(1), Sch. 21 para. 32 (with ss. 210(8), 214(4)); S.I. 2002/2439, art. 3; S.I. 2002/3185, art. 4, Sch. Pt. 1

F10Words in s. 218(7) substituted (1.10.2002 except in relation to W. and otherwise 19.12.2002) by Education Act 2002 (c. 32), s. 215(1), Sch. 21 para. 32 (with ss. 210(8), 214(4)); S.I. 2002/2439, art. 3; S.I. 2002/3185, art. 4, Sch. Pt. 1

F19S. 218(10)(cb) inserted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. para. 27(4)

F24S. 218(10)(e) and the preceding word "and" repealed (1.4.2005 for E.W.) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 190. 196, 199(1)(4), Sch. 13 para. 8, {Sch. 14 Pt. 7}; S.I. 2005/457, art. 2(1)(b)

Modifications etc. (not altering text)

C5Ss. 210-219 applied (E.W.) (1.4.2020) by The Agricultural Wages (Wales) Order 2020 (S.I. 2020/347), arts. 1, 2(3)

C7S. 218(7) extended (temp. from 1.4.1999 to 1.9.1999) by S.I. 1999/638, reg. 4

219 Reinstatement or re-engagement of dismissed employee.E+W+S

(1)Regulations made by the Secretary of State may make provision—

(a)for preserving the continuity of a person’s period of employment for the purposes of this Chapter or for the purposes of this Chapter as applied by or under any other enactment specified in the regulations, or

(b)for modifying or excluding the operation of section 214 subject to the recovery of any such payment as is mentioned in that section,

in cases where F26. . . a dismissed employee is reinstated [F27, re-engaged or otherwise re-employed] by his employer or by a successor or associated employer of that employer [F28in any circumstances prescribed by the regulations.]

F29(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F29(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F29(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F26Words in s. 219(1) repealed (1.8.1998) by 1998 c. 8, s. 15, Sch. 1 para. 25(2)(a), Sch. 2; S.I. 1998/1658, art. 2(1), Sch. 1

F27Words in s. 219(1) substituted (1.8.1998) by 1998 c. 8, s. 15, Sch. 1 para. 25(2)(b); S.I. 1998/1658, art. 2(1), Sch. 1

F28Words in s. 219(1) inserted (1.8.1998) by 1998 c. 8, s. 15, Sch. 1 para. 25(2)(c); S.I. 1998/1658, art. 2(1), Sch. 1

F29S. 219(2)-(4) repealed (1.8.1998) by 1998 c. 8, s. 15, Sch. 1 para. 25(3), Sch. 2; S.I. 1998/1658, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C5Ss. 210-219 applied (E.W.) (1.4.2020) by The Agricultural Wages (Wales) Order 2020 (S.I. 2020/347), arts. 1, 2(3)

Chapter IIE+W+S A week’s pay

Modifications etc. (not altering text)

C9Pt. XIV Ch. II (ss. 220-229) applied (with modifications) (1.8.1998) by 1992 c. 52, s. 87(8) (as substituted (1.8.1998) by 1998 c. 8, s. 6; S.I. 1998/1658, art. 2(1), Sch. 1 (with art. 3(2))

Pt. XIV Ch. II (ss. 220-229) applied (with modifications) (4.9.2000) by 1999 c. 26, s. 11(4) (with ss. 14, 15); S.I. 2000/2242, art. 2(1)

Pt. XIV Ch. II (ss. 220-229) applied (15.12.1999) by S.I. 1999/3312, reg. 2(2)

Pt. XIV Ch. II (ss. 220-229) applied (with modifications) (21.6.2000) by S.I. 2000/1410, Pt. III reg. 6(4) (as amended (retrospectively) by S.I. 2002/769, regs. 1(1), 3(b) (with reg. 12))

Pt. XIV Ch. II (ss. 220-229) applied (E.W.) (21.5.2001) by S.I. 2001/1185, arts. 2, 3, Sch. para. 122

C10Pt. XIV Ch. II (ss. 220-229) modified (15.12.1999) by S.I. 1999/3312, reg. 22

C11Pt. XIV Ch. II (ss. 220-229) extended (15.1.2000) by S.I. 1999/3323, reg. 26(2)

C12Pt. 14 Ch. 2 applied (with modifications) (1.10.2004) by Employment Act 2002 (c. 22), ss. 38(6)(7), 55(2); S.I. 2004/1717, art. 2(2) (subject to art. 3)

C13Pt. 14 Ch. 2 applied (8.10.2004) by The European Public Limited-Liability Company Regulations 2004 (S.I. 2004/2326), regs. 1(2), 40(2)

C19Pt. 14 Ch. 2 applied (1.10.2009) by The European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 (S.I. 2009/2401), reg. 27(2) (with reg. 41)

IntroductoryE+W+S

220 Introductory.E+W+S

The amount of a week’s pay of an employee shall be calculated for the purposes of this Act in accordance with this Chapter.

Modifications etc. (not altering text)

C21Ss. 220-224 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)

C22Ss. 220-228 applied (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 16(4) (with reg. 21(5))

Employments with normal working hoursE+W+S

221 General.E+W+S

(1)This section and sections 222 and 223 apply where there are normal working hours for the employee when employed under the contract of employment in force on the calculation date.

(2)Subject to section 222, if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week’s pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.

(3)Subject to section 222, if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does vary with the amount of work done in the period, the amount of a week’s pay is the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable by the employer to the employee in respect of the period of twelve weeks ending—

(a)where the calculation date is the last day of a week, with that week, and

(b)otherwise, with the last complete week before the calculation date.

(4)In this section references to remuneration varying with the amount of work done includes remuneration which may include any commission or similar payment which varies in amount.

(5)This section is subject to sections 227 and 228.

Modifications etc. (not altering text)

C23Ss. 220-224 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)

C25Ss. 221-224 applied (with modifications) (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), regs. 1, 4, 11(4)

C26Ss. 220-228 applied (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 16(4) (with reg. 21(5))

C27Ss. 221-224 applied (with modifications) by S.I. 1998/1833, reg. 16 (as amended) (6.4.2020) by The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (S.I. 2018/1378), regs. 1, 10

222 Remuneration varying according to time of work.E+W+S

(1)This section applies if the employee is required under the contract of employment in force on the calculation date to work during normal working hours on days of the week, or at times of the day, which differ from week to week or over a longer period so that the remuneration payable for, or apportionable to, any week varies according to the incidence of those days or times.

(2)The amount of a week’s pay is the amount of remuneration for the average number of weekly normal working hours at the average hourly rate of remuneration.

(3)For the purposes of subsection (2)—

(a)the average number of weekly hours is calculated by dividing by twelve the total number of the employee’s normal working hours during the relevant period of twelve weeks, and

(b)the average hourly rate of remuneration is the average hourly rate of remuneration payable by the employer to the employee in respect of the relevant period of twelve weeks.

(4)In subsection (3) “the relevant period of twelve weeks” means the period of twelve weeks ending—

(a)where the calculation date is the last day of a week, with that week, and

(b)otherwise, with the last complete week before the calculation date.

(5)This section is subject to sections 227 and 228.

Modifications etc. (not altering text)

C27Ss. 221-224 applied (with modifications) by S.I. 1998/1833, reg. 16 (as amended) (6.4.2020) by The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (S.I. 2018/1378), regs. 1, 10

C28Ss. 220-224 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)

C30Ss. 221-224 applied (with modifications) (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), regs. 1, 4, 11(4)

C31Ss. 220-228 applied (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 16(4) (with reg. 21(5))

223 Supplementary.E+W+S

(1)For the purposes of sections 221 and 222, in arriving at the average hourly rate of remuneration, only—

(a)the hours when the employee was working, and

(b)the remuneration payable for, or apportionable to, those hours,

shall be brought in.

(2)If for any of the twelve weeks mentioned in sections 221 and 222 no remuneration within subsection (1)(b) was payable by the employer to the employee, account shall be taken of remuneration in earlier weeks so as to bring up to twelve the number of weeks of which account is taken.

(3)Where—

(a)in arriving at the average hourly rate of remuneration, account has to be taken of remuneration payable for, or apportionable to, work done in hours other than normal working hours, and

(b)the amount of that remuneration was greater than it would have been if the work had been done in normal working hours (or, in a case within section 234(3), in normal working hours falling within the number of hours without overtime),

account shall be taken of that remuneration as if the work had been done in such hours and the amount of that remuneration had been reduced accordingly.

Modifications etc. (not altering text)

C27Ss. 221-224 applied (with modifications) by S.I. 1998/1833, reg. 16 (as amended) (6.4.2020) by The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (S.I. 2018/1378), regs. 1, 10

C32Ss. 220-224 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)

C34Ss. 221-224 applied (with modifications) (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), regs. 1, 4, 11(4)

C35Ss. 220-228 applied (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 16(4) (with reg. 21(5))

Employments with no normal working hoursE+W+S

224 Employments with no normal working hours.E+W+S

(1)This section applies where there are no normal working hours for the employee when employed under the contract of employment in force on the calculation date.

(2)The amount of a week’s pay is the amount of the employee’s average weekly remuneration in the period of twelve weeks ending—

(a)where the calculation date is the last day of a week, with that week, and

(b)otherwise, with the last complete week before the calculation date.

(3)In arriving at the average weekly remuneration no account shall be taken of a week in which no remuneration was payable by the employer to the employee and remuneration in earlier weeks shall be brought in so as to bring up to twelve the number of weeks of which account is taken.

(4)This section is subject to sections 227 and 228.

Modifications etc. (not altering text)

C27Ss. 221-224 applied (with modifications) by S.I. 1998/1833, reg. 16 (as amended) (6.4.2020) by The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (S.I. 2018/1378), regs. 1, 10

C36Ss. 220-224 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)

C38Ss. 221-224 applied (with modifications) (16.8.2004) by The Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 (S.I. 2004/1713), regs. 1, 4, 11(4)

C39Ss. 220-228 applied (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 16(4) (with reg. 21(5))

The calculation dateE+W+S

225 Rights during employment.E+W+S

(1)Where the calculation is for the purposes of section 30, the calculation date is—

(a)where the employee’s contract has been varied, or a new contract entered into, in connection with a period of short-time working, the last day on which the original contract was in force, and

(b)otherwise, the day in respect of which the guarantee payment is payable.

(2)Where the calculation is for the purposes of section 53 or 54, the calculation date is the day on which the employer’s notice was given.

(3)Where the calculation is for the purposes of section 56, the calculation date is the day of the appointment.

[F30(3A)Where the calculation is for the purposes of section 57ZF, the calculation date is the day of the appointment.]

[F31(3B)Where the calculation is for the purposes of section 57ZK or 57ZM, the calculation date is the day of the appointment.]

(4)Where the calculation is for the purposes of section 62, the calculation date is the day on which the time off was taken or on which it is alleged the time off should have been permitted.

[F32(4A)Where the calculation is for the purposes of section 63B, the calculation date is the day on which the time off was taken or on which it is alleged the time off should have been permitted.]

[F33(4B)Where the calculation is for the purposes of section 63J, the calculation date is the day on which the section 63D application was made.]

(5)Where the calculation is for the purposes of section 69—

(a)in the case of an employee suspended on medical grounds, the calculation date is the day before that on which the suspension begins, and

(b)in the case of an employee suspended on maternity grounds, the calculation date is—

[F34(i)where the day before that on which the suspension begins falls during a period of ordinary or additional maternity leave, the day before the beginning of that period,]

(ii)otherwise, the day before that on which the suspension begins.

[F35(6)Where the calculation is for the purposes of section 80I, the calculation date is the day on which the application under section 80F was made.]

Textual Amendments

F32S. 225(4A) inserted (1.9.1999) by 1998 c. 30, s. 44(1), Sch. 3 para. 14 (with s. 42(8)); S.I. 1999/987, art. 2

F33S. 225(4B) inserted (6.4.2010 for certain purposes and otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 40, 269(4), Sch. 1 para. 8; S.I. 2010/303, art. 4, Sch. 3 (with arts. 8-14) (as amended by S.I. 2010/1151, art. 22)

F34S. 225(5)(b)(i) substituted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 39; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)

Modifications etc. (not altering text)

C40Ss. 220-228 applied (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 16(4) (with reg. 21(5))

226 Rights on termination.E+W+S

(1)Where the calculation is for the purposes of section 88 or 89, the calculation date is the day immediately preceding the first day of the period of notice required by section 86(1) or (2).

(2)Where the calculation is for the purposes of section 93, 117 or 125, the calculation date is—

(a)if the dismissal was with notice, the date on which the employer’s notice was given, and

(b)otherwise, the effective date of termination.

(3)Where the calculation is for the purposes of section [F36112, 119, 120 [F37, 121 or 124]] , the calculation date is—

F38(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)if by virtue of subsection (2) or (4) of section 97 a date later than the effective date of termination as defined in subsection (1) of that section is to be treated for certain purposes as the effective date of termination, the effective date of termination as so defined, and

(c)otherwise, the date specified in subsection (6).

(4)Where the calculation is for the purposes of section 147(2), the calculation date is the day immediately preceding the first of the four, or six, weeks referred to in section 148(2).

(5)Where the calculation is for the purposes of section 162, the calculation date is—

F38(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)if by virtue of subsection (5) of section 145 a date is to be treated for certain purposes as the relevant date which is later than the relevant date as defined by the previous provisions of that section, the relevant date as so defined, and

(c)otherwise, the date specified in subsection (6).

(6)The date referred to in subsections (3)(c) and (5)(c) is the date on which notice would have been given had—

(a)the contract been terminable by notice and been terminated by the employer giving such notice as is required by section 86 to terminate the contract, and

(b)the notice expired on the effective date of termination, or the relevant date,

(whether or not those conditions were in fact fulfilled).

Textual Amendments

F36Words in s. 226(3) substituted (1.10.2004) by Employment Act 2002 (c. 22), ss. 53, 55(2), Sch. 7 para. 46; S.I. 2004/2185, art. 2

Modifications etc. (not altering text)

C41Ss. 226-229 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)

C42Ss. 220-228 applied (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 16(4) (with reg. 21(5))

Maximum amount of week’s payE+W+S

227 Maximum amount.E+W+S

(1)For the purpose of calculating—

[F39(zza)an award of compensation under section 63J(1)(b),]

[F40(za)an award of compensation under section 80I(1)(b),]

(a)a basic award of compensation for unfair dismissal,

(b)an additional award of compensation for unfair dismissal,

[F41(ba)an award under section 112(5), or]

(c)a redundancy payment,

the amount of a week’s pay shall not exceed [F42£544].

F43(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F43(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F43(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F39S. 227(1)(zza) inserted (6.4.2010 for certain purposes and otherwise prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 40, 269(4), Sch. 1 para. 9; S.I. 2010/303, art. 4, Sch. 3 (with arts. 8-14) (as amended by S.I. 2010/1151, art. 22)

F41S. 227(1)(ba) substituted (1.11.2004) for word by Employment Act 2002 (c. 22), ss. 53, 55(2), Sch. 7 para. 47(3); S.I. 2004/2822, art. 2(a)

F43S. 227(2)-(4) repealed (17.12.1999) by 1999 c. 26, ss. 36(1)(3), 44, Sch. 9(10); S.I. 1999/3374, art. 2(b)(c), Sch.

Modifications etc. (not altering text)

C43Ss. 226-229 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)

C44Ss. 220-228 applied (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 16(4) (with reg. 21(5))

C45S. 227(1): power to amend conferred (17.12.1999) by 1999 c. 26, s. 34(1)(e); S.I. 1999/3374, art. 2(a)

S. 227(1) applied (4.9.2000) by 1999 c. 26, s. 11(5) (with ss. 14, 15); S.I. 2000/2242, art. 2(1)

C49S. 227(1)(c) excluded (4.3.1998) by S.I. 1998/192, reg. 37(1)

MiscellaneousE+W+S

228 New employments and other special cases.E+W+S

(1)In any case in which the employee has not been employed for a sufficient period to enable a calculation to be made under the preceding provisions of this Chapter, the amount of a week’s pay is the amount which fairly represents a week’s pay.

(2)In determining that amount the [F44employment tribunal]—

(a)shall apply as nearly as may be such of the preceding provisions of this Chapter as it considers appropriate, and

(b)may have regard to such of the considerations specified in subsection (3) as it thinks fit.

(3)The considerations referred to in subsection (2)(b) are—

(a)any remuneration received by the employee in respect of the employment in question,

(b)the amount offered to the employee as remuneration in respect of the employment in question,

(c)the remuneration received by other persons engaged in relevant comparable employment with the same employer, and

(d)the remuneration received by other persons engaged in relevant comparable employment with other employers.

(4)The Secretary of State may by regulations provide that in cases prescribed by the regulations the amount of a week’s pay shall be calculated in such manner as may be so prescribed.

Textual Amendments

F44Words in s. 228(2) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

Modifications etc. (not altering text)

C50Ss. 226-229 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)

C51Ss. 220-228 applied (6.4.2006 with application in accordance with reg. 21(1) of the amending S.I.) by The Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246), regs. 1(2), 16(4) (with reg. 21(5))

229 Supplementary.E+W+S

(1)In arriving at—

(a)an average hourly rate of remuneration, or

(b)average weekly remuneration,

under this Chapter, account shall be taken of work for a former employer within the period for which the average is to be taken if, by virtue of Chapter I of this Part, a period of employment with the former employer counts as part of the employee’s continuous period of employment.

(2)Where under this Chapter account is to be taken of remuneration or other payments for a period which does not coincide with the periods for which the remuneration or other payments are calculated, the remuneration or other payments shall be apportioned in such manner as may be just.

Modifications etc. (not altering text)

C52Ss. 226-229 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)

Chapter IIIE+W+S Other interpretation provisions

230 Employees, workers etc.E+W+S

(1)In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2)In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3)In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a)a contract of employment, or

(b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly.

(4)In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5)In this Act “employment”—

(a)in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

(b)in relation to a worker, means employment under his contract;

and “employed” shall be construed accordingly.

[F45(6) This section has effect subject to sections 43K [F46, 47B(3) and 49B(10)]; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “ worker ”, “ worker’s contract ” and, in relation to a worker, “ employer ”, “ employment ” and “ employed ” have the extended meaning given by section 43K. ]

[F47(7)This section has effect subject to section 75K(3) and (5).]

Textual Amendments

F45S. 230(6) inserted (2.7.1999) by 1998 c. 23, s. 15(1); S.I. 1999/1547, art. 2

Modifications etc. (not altering text)

C53S. 230(3)(b) applied (1.11.1998) by 1998 c. 39, s. 24(5); S.I. 1998/2574, art. 2(1), Sch. 1

231 Associated employers.E+W+S

For the purposes of this Act any two employers shall be treated as associated if—

(a)one is a company of which the other (directly or indirectly) has control, or

(b)both are companies of which a third person (directly or indirectly) has control;

and “associated employer” shall be construed accordingly.

Modifications etc. (not altering text)

232 Shop workers.E+W+S

(1)In this Act “shop worker” means an employee who, under his contract of employment, is or may be required to do shop work.

(2)In this Act “shop work” means work in or about a shop F48. . . on a day on which the shop is open for the serving of customers.

(3)Subject to subsection (4), in this Act “shop” includes any premises where any retail trade or business is carried on.

(4)Where premises are used mainly for purposes other than those of retail trade or business and would not (apart from subsection (3)) be regarded as a shop, only such part of the premises as—

(a)is used wholly or mainly for the purposes of retail trade or business, or

(b)is used both for the purposes of retail trade or business and for the purposes of wholesale trade and is used wholly or mainly for those two purposes considered together,

is to be regarded as a shop for the purposes of this Act.

(5)In subsection (4)(b) “wholesale trade” means the sale of goods for use or resale in the course of a business or the hire of goods for use in the course of a business.

(6)In this section “retail trade or business” includes—

(a)the business of a barber or hairdresser,

(b)the business of hiring goods otherwise than for use in the course of a trade or business, and

(c)retail sales by auction,

but does not include catering business or the sale at theatres and places of amusement of programmes, catalogues and similar items.

(7)In subsection (6) “catering business” means—

(a)the sale of meals, refreshments or [F49alcohol]F50... for consumption on the premises on which they are sold, or

(b)the sale of meals or refreshments prepared to order for immediate consumption off the premises;[F51 except that in Scotland “alcohol” has the meaning given in section 2 of the Licensing (Scotland) Act 2005]

and in paragraph (a) [F52“alcohol” has the same meaning as in the Licensing Act 2003] .

(8)In this Act—

Extent Information

E1S. 232, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

Textual Amendments

F49Words in s. 232(7)(a) substituted (24.11.2005) by Licensing Act 2003 (c. 17), ss. 198, 201, Sch. 6 para. 114(a) (with ss. 2(3), 15(2), 195); S.I. 2005/3056, art. 2(2)

F52Words in s. 232(7)(b) substituted (24.11.2005) by Licensing Act 2003 (c. 17), ss. 198, 201, Sch. 6 para. 114(b) (with ss. 2(3), 15(2), 195); S.I. 2005/3056, art. 2(2)

[F53233 Betting workersE+W+S

(1) In this Act “ betting worker ” means an employee who under his contract of employment is or may be required to do betting work.

(2) In this Act “ betting work ” means—

(a)work which consists of or includes dealing with betting transactions at a track in England or Wales and which is carried out for a person who holds a general betting operating licence, a pool betting operating licence or a horse-race pool betting operating licence, and

(b)work on premises in respect of which a betting premises licence has effect at a time when the premises are used for betting transactions.

(3) In subsection (2) “ betting transactions ” includes the collection or payment of winnings.

(4)Expressions used in this section and in the Gambling Act 2005 have the same meaning in this section as in that Act.

(5)In this Act—

Extent Information

E2S. 233, which previously extended to England and Wales only, extends to England and Wales and Scotland from 6.4.2004 by virtue of the amendment to s. 244(2) by Sunday Working (Scotland) Act 2003 (c. 18), ss. 1(5), 3; S.I. 2004/958, art. 2

Textual Amendments

F53S. 233 substituted (1.9.2007) by Gambling Act 2005 (c. 19), ss. 356, 358, Sch. 16 para. 11 (with ss. 352, 354 and Sch. 16 para. 21); S.I. 2006/3272, art. 2(4) (with transitional provisions in Sch. 4) (as amended by S.I. 2007/1157, art. 3)

234 Normal working hours.E+W+S

(1)Where an employee is entitled to overtime pay when employed for more than a fixed number of hours in a week or other period, there are for the purposes of this Act normal working hours in his case.

(2)Subject to subsection (3), the normal working hours in such a case are the fixed number of hours.

(3)Where in such a case—

(a)the contract of employment fixes the number, or minimum number, of hours of employment in a week or other period (whether or not it also provides for the reduction of that number or minimum in certain circumstances), and

(b)that number or minimum number of hours exceeds the number of hours without overtime,

the normal working hours are that number or minimum number of hours (and not the number of hours without overtime).

Modifications etc. (not altering text)

235 Other definitions.E+W+S

(1)In this Act, except in so far as the context otherwise requires—

(2) The definition of “successor” in subsection (1) has effect (subject to the necessary modifications) in relation to a case where—

(a)the person by whom an undertaking or part of an undertaking is owned immediately before a change is one of the persons by whom (whether as partners, trustees or otherwise) it is owned immediately after the change, or

(b)the persons by whom an undertaking or part of an undertaking is owned immediately before a change (whether as partners, trustees or otherwise) include the persons by whom, or include one or more of the persons by whom, it is owned immediately after the change,

as it has effect where the previous owner and the new owner are wholly different persons.

[F65(2A)For the purposes of this Act a contract of employment is a “limited-term contract” if—

(a)the employment under the contract is not intended to be permanent, and

(b)provision is accordingly made in the contract for it to terminate by virtue of a limiting event.

(2B)In this Act, “limiting event”, in relation to a contract of employment means—

(a)in the case of a contract for a fixed-term, the expiry of the term,

(b)in the case of a contract made in contemplation of the performance of a specific task, the performance of the task, and

(c)in the case of a contract which provides for its termination on the occurrence of an event (or the failure of an event to occur), the occurrence of the event (or the failure of the event to occur).]

(3)References in this Act to redundancy, dismissal by reason of redundancy and similar expressions shall be construed in accordance with section 139.

(4) In sections 136(2), 154 and 216(3) and paragraph 14 of Schedule 2 “lock-out” means—

(a)the closing of a place of employment,

(b)the suspension of work, or

(c)the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute,

done with a view to compelling persons employed by the employer, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment.

(5) In sections 91(2), 140(2) and (3), 143(1), 144(2) and (3), 154 and 216(1) and (2) and paragraph 14 of Schedule 2 “strike” means—

(a)the cessation of work by a body of employed persons acting in combination, or

(b)a concerted refusal, or a refusal under a common understanding, of any number of employed persons to continue to work for an employer in consequence of a dispute,

done as a means of compelling their employer or any employed person or body of employed persons, or to aid other employees in compelling their employer or any employed person or body of employed persons, to accept or not to accept terms or conditions of or affecting employment.

Textual Amendments

F54Definitions in s. 235(1) inserted (5.4.2015) by Children and Families Act 2014 (c. 6), ss. 128(2)(e), 139(6); S.I. 2014/1640, art. 6(d)

F57Definition in s. 235(1) substituted (5.4.2015) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 42(a); S.I. 2014/1640, art. 7(u) (with art. 16)

F58S. 235(1): definitions of "maternity leave" and "notified day of return" repealed (15.12.1999) by 1999 c. 26, ss. 9, 44, Sch. 4 Pt. III para. 41, Sch. 9(2); S.I. 1999/2830, art. 2(2)(3), Sch. 1 Pt. II, Sch. 2 Pt. II (with Sch. 3 paras. 10, 11)

F59Definition of "protected disclosure" in s. 235 inserted (2.7.1999) by 1998 c. 23, s. 15(2); S.I. 1999/1547, art. 2

F60S. 235(1): definition inserted (6.4.2010 for certain purposes and otherwsie prosp.) by Apprenticeships, Skills, Children and Learning Act 2009 (c. 22), ss. 40, 269(4), Sch. 1 para. 10; S.I. 2010/303, art. 4, Sch. 3 (with arts. 8-14) (as amended by S.I. 2010/1151, art. 22)

F62Words in s. 235(1) substituted (8.12.2002) by Employment Act 2002 (c. 22), s. 55(2), 53, Sch. 7 para. 48(3); The Employment Act 2002 (Commencement No. 3 and Transitional and Saving Provisions) Order 2002 (S.I. 2002/2866), art. 2(2), Sch. 1 Pt. 2

F65S. 235(2A)(2B) inserted (1.10.2002) by The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (S.I. 2002/2034), reg. 11, Sch. 2 Pt. 1 para. 3(18) (with regs. 13-20 and subject to transitional provisions in Sch. 2 Pt. 2)

Marginal Citations