(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.
Cases considering section 221 14
[2010] UKSC 16 · 24 March 2010Disapplies
The detailed week’s-pay calculation scheme did not apply to aviation crew. Although the tribunals had used it by analogy, any holiday-pay calculation under the Aviation Regulations had to proceed without that statutory machinery (see paras [5]; [9]; [15]; [17]).
The provision addresses remuneration which does not vary with the amount of work. It formed part of the inapplicable statutory calculation scheme. Cited only.
The provision addresses remuneration varying with work and uses an average over a defined preceding period. It formed part of the scheme which did not apply to aviation crew. Cited only.
[2016] EWCA Civ 983 · 7 October 2016
On ordinary domestic construction, section 221(2) confines the relevant worker’s week’s pay to basic salary because remuneration does not vary with the amount of work done. That result is displaced by the conforming interpretation of the Regulations for regulation 13 leave (see paras [13]; [49]; [100]–[113]).
Section 221(3) provides a 12-week averaging calculation where remuneration varies with the amount of work done. The Tribunal’s conforming construction treats the relevant results-based commission case as falling within that calculation for regulation 13 leave (see paras [26]–[27]; [112]; [116]).
Section 221(4) permits commission to form part of remuneration once the statutory categorisation has been made. It does not itself require every commission arrangement to fall within section 221(3) (see paras [45]–[47]; [49]).
[2011] EWCA Civ 1169 · 20 October 2011
Applies the statutory week’s-pay framework to the redundancy-payment issue. The court treated the relevant paid period as including paid holiday entitlement, so the denominator was 45 weeks rather than 40. (see paras [5]; [12])
1 more judgment, and what each says about section 221, are in the
case-law panel in the full Act.