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Part 3CONDITIONS OF ENTITLEMENT RELATING TO EMPLOYMENT AND EARNINGS

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)(1) to, the Social Security (Contributions) Regulations 2001, or under regulation 27 (payments to directors to be disregarded)(2) 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(3) 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(4);

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(5);

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(6);

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—

(a)

in any case where the person is entitled to statutory maternity pay under section 164 of the 1992 Act in respect of C, the same date as the appropriate date for the purposes of regulation 21(2) of the Statutory Maternity Pay (General) Regulations 1986(7);

(b)

in any case where the person is entitled to statutory paternity pay under section 171ZA (birth) or section 171ZB (adoption) of the 1992 Act or statutory adoption pay under section 171ZL of the 1992 Act(8) in respect of C, the same date as the appropriate date for the purposes of that pay under regulation 40(2) of the Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002(9);

(c)

in any other case, the first day of the week in which the neonatal care starts;

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—

(a)

the terms of a person’s contract of service require the person to be paid, or

(b)

the practice in that person’s employment is for that person to be paid,

if any payment is due to them.

(2)

Regulation 27 was amended by S.I. 2004/770 and 2005/3130.

(3)

Section 10A was inserted by section 53 of the Social Security Act 1998 (c. 14) and amended by paragraph 177 of Schedule 6 to the Income Tax (Earnings and Pensions) Act 2003 (c. 1), paragraph 1 of Schedule 1 to the National Insurance Contributions and Statutory Payments Act 2004 (c. 3) and paragraph 11 of Schedule 3 to the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c. 2). There are other amending instruments but none is relevant.

(4)

Section 4B was inserted by section 1 of the National Insurance Contributions Act 2006 (c. 10) and amended by section 14 of the National Insurance Contributions Act 2014 (c. 7).

(5)

1992 c. 52. Relevant amendments to section 189 are S.I. 1999/1925 and 1999/2587.

(6)

Section 151(6) was amended by paragraph 9 of Schedule 1 to the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c. 2).

(7)

S.I. 1986/1960; regulation 21 was amended by S.I. 1994/1367.

(8)

term the 2006 act term the 2014 act Sections 171ZA to 171ZK were inserted by section 2 of the Employment Act 2002 (c. 22). Section 171ZA was amended by paragraph 12 of Schedule 7 to the Children and Families Act 2014 (c. 6) (“the 2014 Act”) and paragraph 12 of Schedule 1 to the Work and Families Act 2006 (c. 18) (“the 2006 Act”). Section 171ZB was amended by paragraph 13 of Schedule 7 to the 2014 Act, paragraph 13 of Schedule 1 to the 2006 Act and S.I. 2016/413. Section 171ZL was inserted by section 4 of the Employment Act 2002 and amended by section 121(5) of the 2014 Act and S.I. 2006/413 and 2012, 2011/1740, and 2019/1514.

(9)

S.I. 2002/2822. The definition of “appropriate date” in regulation 40(2) is modified as it applies to section 54 parental order parents and section 54A parental order parents by S.I. 2014/2934; and modified as it applies to adoptions from overseas by S.I. 2003/1194; there are other amendments to regulation 40 but none is relevant.