35.—(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 a claimant on account of the termination of his employment by reason of redundancy;
(c)any payment in lieu of notice;
(d)any holiday pay;
(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 his home and place of employment;
(ii)expenses incurred by the claimant under arrangements made for the care of a member of his family owing to the claimant's absence from home;
(g)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 F1;
(h)statutory sick pay and statutory maternity pay payable by the employer under the Act;
[F2(i)ordinary statutory paternity pay payable under Part 12ZA of the Act;
(ia)additional statutory paternity pay payable under Part 12ZA of the Act;]
(j)statutory adoption pay payable under Part 12ZB of the Act F3;
(k)any sums payable under a contract of service—
(i)for incapacity for work due to sickness or injury; or
(ii)by reason of pregnancy or confinement.
(2) Earnings shall 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;
(d)any lump sum payment made under the Iron and Steel Re-adaptation Benefits Scheme F4;
(e)any payment of compensation made pursuant to an award by an employment tribunal F5 established under the Employment Tribunals Act 1996 F6 in respect of unfair dismissal or unlawful discrimination.
[F7(f)any payment in respect of expenses arising out of the claimant’s participation in a service user group.]
(3) Paragraph (2)(a) shall not apply in respect of any non-cash voucher referred to in paragraph (1)(g).
Textual Amendments
F2Reg. 35(1)(i)(ia) substituted for reg. 35(1)(i) (1.4.2012 for specified purposes, 2.4.2012 in so far as not already in force) by The Social Security (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/757), regs. 1(2), 8(5)
F3Part 12ZB was inserted by section 4 of the Employment Act 2002.
F4The Scheme is set out in regulation 4 of, and the Schedule to, the European Communities (Iron and Steel Employees Re-adaptation Benefits Scheme) (No. 2) Regulations 1996 (S.I. 1996/3182).
F5Industrial tribunals were renamed employment tribunals under section 1 of the Employment Rights (Dispute Resolution) Act 1998 (c. 8) and, under the same section, the Industrial Tribunals Act 1996 may be cited as the Employment Tribunals Act 1996.
F7Reg. 35(2)(f) added (2.11.2009) by The Social Security (Miscellaneous Amendments) (No. 4) Regulations 2009 (S.I. 2009/2655), regs. 1(3)(b), 7(3)
36.—(1) For the purposes of regulation 30 (calculation of income on a weekly basis), the earnings of a claimant derived or likely to be derived from employment as an employed earner to be taken into account shall, subject to regulation 33(5) and Schedule 4, be his net earnings.
(2) For the purposes of paragraph (1) net earnings shall, except in relation to any payment to which regulation 33(5) refers, be calculated by taking into account the gross earnings of the claimant 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 Act;
(b)one-half of any sum paid by the claimant by way of a contribution towards an occupational pension scheme;
(c)one-half of the amount calculated in accordance with paragraph (4) in respect of any qualifying contribution payable by the claimant; 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, [F8ordinary 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 Act.
(3) In this regulation “qualifying contribution” means any sum which is payable periodically as a contribution towards a personal pension scheme.
(4) The amount in respect of any qualifying contribution shall 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 shall 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;
(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.
(5) Where the earnings of a claimant are determined under sub-paragraph (b) of paragraph (2) of regulation 33 (calculation of weekly income), his net earnings shall 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 F9... the basic rate of tax applicable to the assessment period less only the personal relief to which the claimant is entitled under section 257(1) of the Income and Corporation Taxes Act 1988 F10 (personal allowances) as is appropriate to his circumstances but, if the assessment period is less than a year, the earnings to which the [F11[F12basic] rate] of tax is to be applied and the amount of the personal relief deductible under this sub-paragraph shall 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 him under the Act in respect of those earnings if such contributions were payable; and
(c)one-half of any sum which would be payable by the claimant by way of a contribution towards an occupational or personal pension scheme, if the earnings so estimated were actual earnings.
Textual Amendments
F8Words in reg. 36(2)(d) substituted (1.4.2012 for specified purposes, 2.4.2012 in so far as not already in force) by The Social Security (Miscellaneous Amendments) Regulations 2012 (S.I. 2012/757), regs. 1(2), 8(6)
F9Words in reg. 36(5)(a) omitted (6.4.2009) by virtue of The Social Security (Miscellaneous Amendments) Regulations 2009 (S.I. 2009/583), regs. 1(2), 7(6)(a)
F10 1988 c. 1; section 257 was substituted by the Finance Act 1988 (c. 39), section 33.
F11Words in reg. 36(5)(a) substituted (1.10.2007) by The Social Security (Miscellaneous Amendments) (No. 5) Regulations 2007 (S.I. 2007/2618), regs. 1(1), 12(4)
F12Word in reg. 36(5)(a) substituted (6.4.2009) by The Social Security (Miscellaneous Amendments) Regulations 2009 (S.I. 2009/583), regs. 1(2), 7(6)(b)