Part 3CONDITIONS OF ENTITLEMENT RELATING TO EMPLOYMENT AND EARNINGS

Treatment of persons as employees

term the 1978 regulations + regulation 14 + 14.—(1) A person is treated as an employee for the purposes of Part 12ZE of the 1992 Act (despite not falling within the definition of “employee” in section 171ZZ24(2) of that Act) where, and in so far as, that person is treated as an employed earner by virtue of the Social Security (Categorisation of Earners) Regulations 1978(1)(“the 1978 Regulations”).

(2) A person is not to be treated as an employee for the purposes of Part 12ZE of the 1992 Act (despite falling within the definition of “employee” in section 171ZZ24(2) of that Act) where, and in so far as, that person is not treated as an employed earner by virtue of the 1978 Regulations.

(3) Paragraphs (1) and (2) have effect in relation to a person who—

regulation 14 3 a + (a)is under the age of 16, and

regulation 14 3 b + (b)would, or as the case may be, would not have been treated as an employed earner by virtue of the 1978 Regulations had they been over that age,

as they have effect in relation to a person who is, or as the case may be, is not treated as an employed earner by virtue of those Regulations.

(4) A person is treated as an employee for the purposes of Part 12ZE of the 1992 Act (despite not falling within the definition of “employee” in section 171ZZ24(2) of that Act) where that person is in employed earner’s employment under a contract of apprenticeship.

(5) A person is not to be treated as an employee for the purposes of Part 12ZE of the 1992 Act (despite falling within the definition of “employee” in section 171ZZ24(2) of that Act) where that person is in employed earner’s employment but that person’s employer—

regulation 14 5 a + (a)does not fulfil the conditions prescribed in regulation 145(1) of the Social Security (Contributions) Regulations 2001(2) in so far as that provision relates to residence or presence in Great Britain, or

regulation 14 5 b + (b)is a person who, by reason of any international treaty to which the United Kingdom is a party or of any international convention binding the United Kingdom—

regulation 14 5 b i + (i)is exempt from the provisions of the 1992 Act, or

regulation 14 5 b ii + (ii)is a person against whom the provisions of the 1992 Act are not enforceable.

Continuous employment from the end of the relevant week

regulation 15 + 15.—(1) Except in a case falling within regulation 27(1) (avoidance of liability by a former employer), a person is not entitled to statutory neonatal care pay in respect of a particular week or period of consecutive weeks unless the week before that week or that period—

regulation 15 1 a + (a)the person is in employed earner’s employment with the employer by reference to whom the condition in section 171ZZ16(2)(b) of the 1992 Act is satisfied, and

regulation 15 1 b + (b)that employment has been continuous from the end of the relevant week.

(2) In a case where C is born before the relevant week, sub-paragraph (1)(b) has effect as if for “end of the relevant week” there were substituted “date of C’s birth”.

Continuous employment even though no contract of service exists

regulation 16 + 16.—(1) A week is to be treated for the purposes of section 171ZZ16 of the 1992 Act as part of a period of continuous employment with the employer even though no contract of service exists with that employer in respect of that week in the circumstances mentioned in paragraph (2).

(2) The circumstances mentioned in paragraph (1) are that in any week the person is, for the whole or part of the week—

regulation 16 2 a + (a)incapable of work in consequence of sickness or injury,

regulation 16 2 b + (b)absent from work on account of a temporary cessation of work, or

regulation 16 2 c + (c)absent from work in circumstances such that, by arrangement or custom, that person is regarded as continuing in the employment of their employer for all or any purposes,

and returns to work for their employer after the incapacity for or absence from work.

(3) Incapacity for work which lasts more than 26 consecutive weeks does not count for the purposes of paragraph (2)(a).

(4) Where a person—

regulation 16 4 a + (a)is an employee in employed earner’s employment in which the custom is for the employer—

regulation 16 4 a i + (i)to offer work for a fixed period of not more than 26 consecutive weeks,

regulation 16 4 a ii + (ii)to offer work for such period on two or more occasions in a year for periods which do not overlap, and

regulation 16 4 a iii + (iii)to offer the work available to those persons who had worked for the employer during the last or a recent such period, but

regulation 16 4 b + (b)is absent from work because of incapacity arising from some specific disease or bodily or mental disablement,

then in that case paragraph (2) applies as if the words “and returns to work for their employer after the incapacity for or absence from work” were omitted.

Continuous employment and unfair dismissal

regulation 17 + 17.—(1) Where in consequence of specified action in relation to a person’s dismissal, the person is reinstated or re-engaged by their employer or by a successor or associated employer of that employer then—

regulation 17 1 a + (a)the continuity of their employment is preserved for the purposes of section 171ZZ16 of the 1992 Act for the period beginning with the effective date of termination and ending with the date of reinstatement or re-engagement, and

regulation 17 1 b + (b)any week which falls within the interval beginning with the effective date of termination and ending with the date of reinstatement or re-engagement, as the case may be, counts in the computation of their period of continuous employment.

(2) In this regulation—

term dismissal procedures agreement + “dismissal procedures agreement” has the same meaning as in section 235 of the 1996 Act(3);

term specified action in relation to a persons dismissal + “specified action in relation to a person’s dismissal” means action which consists of—

term successor + “successor”has the same meaning as in section 235 of the 1996 Act.

Continuous employment and stoppages of work

regulation 18 + 18.—(1) Where a person does not work for any week or part of a week because there is a stoppage of work at that person’s place of employment due to a trade dispute within the meaning of section 35(1) of the Jobseekers Act 1995(7) then—

regulation 18 1 a + (a)that person’s continuity of employment is treated as continuing throughout the stoppage for the purposes of section 171ZZ16 of the 1992 Act, and

regulation 18 1 b + (b)no such week counts in the computation of their period of continuous employment.

(2) Where during the stoppage of work a person is dismissed from their employment, that person’s continuity of employment is not to be treated under paragraph (1) as continuing beyond the commencement of the day that person stopped work.

(3) Paragraph (1)(b) and paragraph (2) do not apply to a person who proves that at no time did they have a direct interest in the trade dispute in question.

Modification for periods of employment between 25 and 26 weeks

regulation 19 + 19.—(1) This regulation applies where a person—

regulation 19 1 a + (a)has not been in employed earner’s employment with the same employer for more than 26 weeks ending with the relevant week, but

regulation 19 1 b + (b)has been in employed earner’s employment with the same employer in each of the 26 weeks in the 26 week period ending with the relevant week.

(2) To determine whether that person’s employment amounts to a continuous period of at least 26 weeks for the purposes of section 171ZZ16 of the 1992 Act, the first of those 26 weeks is a period commencing on the first day of the person’s employment with the employer (“the start date”) and ending at midnight on—

regulation 19 2 a + (a)the first Saturday after the start date, or

regulation 19 2 b + (b)where the start date is a Saturday, that day.

Change of employer

regulation 20 + 20.  Where a person’s employer changes, a person’s employment is to be treated for the purposes of section 171ZZ16 of the 1992 Act as continuous employment with the second employer in the following circumstances—

regulation 20 a + (a)the employer’s trade or business or an undertaking (whether or not the undertaking is established by or under an Act of Parliament) is transferred from one person to another,

regulation 20 b + (b)a contract of employment between any body corporate and the person is modified by or under an Act of Parliament, whether public or local and whenever passed and some other body corporate is substituted as that person’s employer,

regulation 20 c + (c)on the death of an employer, the person is taken into the employment of the personal representatives or trustees of the deceased,

regulation 20 d + (d)the person is employed by partners, personal representatives or trustees and there is a change in the partners or as the case may be, personal representatives or trustees,

regulation 20 e + (e)the person is taken into the employment of an employer who is, at the time the person entered into the employer’s employment, an associated employer of the person’s previous employer, or

regulation 20 f + (f)on the termination of the person’s employment with one employer that person is taken into the employment of another employer and those employers are—

regulation 20 f i + (i)governors of a school maintained by a local authority, within the meaning of section 579(1) of the Education Act 1996(8),

regulation 20 f ii + (ii)that local authority.

Reinstatement after service with the armed forces

regulation 21 + 21.  Where a person—

regulation 21 a + (a)is entitled to apply to their former employer for reinstatement under the Reserve Forces (Safeguard of Employment) Act 1985(9), and

regulation 21 b + (b)is taken into the employment of that employer within the six month period mentioned in section 1(4)(b) (obligation to reinstate) of that Act,

that person’s previous period of employment with that employer, or if there was more than one such period, the last of those periods, and the period of employment beginning in that six month period, is to be treated as continuous for the purposes of section 171ZZ16 of the 1992 Act.

Treatment of two or more employers or two or more contracts of service as one

regulation 22 + 22.—(1) In a case where the earnings paid to a person in respect of two or more employments are aggregated and treated as a single payment of earnings under regulation 15(1) (aggregation of earnings paid in respect of different employed earner’s employments by different persons) of the Social Security (Contributions) Regulations 2001, the employers of that person in respect of those employments must be treated as one for the purposes of Part 12ZE of the 1992 Act and these Regulations.

(2) Where two or more employers are treated as one under the provisions of paragraph (1), liability for statutory neonatal care pay must be apportioned between them in such proportions as they may agree or, in default of agreement, in the proportions which the person’s normal weekly earnings from each employment bear to the amount of the aggregated normal weekly earnings over the relevant period as defined in regulation 23(4).

(3) Where two or more contracts of service exist concurrently between one employer and one employee, they must be treated as one for the purposes of Part 12ZE of the 1992 Act and these Regulations except where, by virtue of regulation 14 (aggregation of earnings paid in respect of separate employed earner’s employments under the same employer) of the Social Security (Contributions) Regulations 2001, the earnings from those contracts of service are not aggregated for the purpose of earnings-related contributions.

Normal weekly earnings

regulation 23 + 23.—(1) For the purposes of section 171ZZ24(6) (which defines normal weekly earnings for the purposes of Part 12ZE of the 1992 Act) “earnings” and “relevant period” have the meanings given in this regulation.

term earnings + (2) The expression “earnings” refers to gross earnings and includes any remuneration or profit derived from a person’s employment except any amount which—

regulation 23 2 a + (a)is excluded from the computation of a person’s earnings under regulation 25 of, and Schedule 3 (payments to be disregarded)(10) to, the Social Security (Contributions) Regulations 2001, or under regulation 27 (payments to directors to be disregarded)(11) of those Regulations; or

regulation 23 2 b + (b)would have been excluded under sub-paragraph (a) had the payments not been made when the person was under the age of 16, or

regulation 23 2 c + (c)is a chargeable emolument under section 10A (class 1B contributions) of the 1992 Act(12) except where in consequence of such a chargeable emolument being excluded from earnings, a person would not be entitled to statutory neonatal care pay, or

regulation 23 2 d + (d)would have been excluded under sub-paragraph (c) had the person not been under the age of 16.

term earnings + (3) The expression “earnings” includes—

regulation 23 3 a + (a)any amount retrospectively treated as earnings by regulations made under section 4B(2) of the 1992 Act(13);

regulation 23 3 b + (b)any sum payable in respect of arrears of pay in pursuance of an order for reinstatement or re-engagement under the 1996 Act;

regulation 23 3 c + (c)any sum payable by way of pay in pursuance of an order made under the 1996 Act for the continuation of a contract of employment;

regulation 23 3 d + (d)any sum payable by way of remuneration in pursuance of a protective award under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992(14);

regulation 23 3 e + (e)any sum payable by way of statutory sick pay, including sums payable in accordance with regulations made under section 151(6) of the 1992 Act(15);

regulation 23 3 f + (f)any sum payable by way of—

regulation 23 3 f i + (i)statutory maternity pay;

regulation 23 3 f ii + (ii)statutory paternity pay;

regulation 23 3 f iii + (iii)statutory shared parental pay;

regulation 23 3 f iv + (iv)statutory adoption pay;

regulation 23 3 f v + (v)statutory parental bereavement pay;

regulation 23 3 f vi + (vi)statutory neonatal care pay.

(4) The “relevant period” is the period—

regulation 23 4 a + (a)ending on the last normal pay day to fall before the appropriate date, and

regulation 23 4 b + (b)beginning with the day following the last normal pay day to fall at least 8 weeks earlier than the normal pay day mentioned in sub-paragraph (a).

(5) In a case where a person has no identifiable normal pay day, paragraph (4) has effect as if the words “day of payment” were substituted for the words “normal pay day” in each place where they occur.

(6) In a case where a person has normal pay days at intervals of or approximating to one or more calendar months (including intervals of or approximating to a year) that person’s normal weekly earnings are calculated by dividing their earnings in the relevant period by the number of calendar months in that period (or, if it is not a whole number, the nearest whole number), multiplying the result by 12 and dividing by 52.

(7) In a case in which paragraph (6) does not apply and the relevant period is not an exact number of weeks, the person’s normal weekly earnings is calculated by dividing their earnings in the relevant period by the number of days in the relevant period and multiplying the result by 7.

(8) In any case where a person receives a back-dated pay increase which includes a sum in respect of a relevant period, normal weekly earnings is calculated as if such a sum was paid in that relevant period even though received after that period.

(9) In paragraphs (4) to (6)—

term the appropriate date + “the appropriate date” means—

term day of payment + “day of payment” means a day on which a person is paid;

term normal pay day + “normal pay day” means a day on which—

if any payment is due to them.

Modification of entitlement conditions: early birth

regulation 24 + 24.—(1) This regulation applies in any case where the relevant week is determined by reference to C’s expected week of birth and C’s birth occurs earlier than the relevant week.

(2) Section 171ZZ16(2)(b) has effect as if for the condition there set out there were substituted the condition that the person would, but for the date on which the birth occurred, have been in employed earner’s employment with an employer for a continuous period of at least 26 weeks ending with the relevant week.

(3) Section 171ZZ16(2)(d) has effect as if for the condition there set out there were substituted the condition that the person’s normal weekly earnings for the period of 8 weeks ending with the week immediately preceding the week in which C is born are not less than the lower earnings limit in force under section 5(1)(a) of the 1992 Act immediately before the commencement of the week in which C is born.