Employment Rights Act 1996, section 222

Remuneration varying according to time of work

Part XIV Interpretation

(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.

Definitions used in section 222 4

employee

(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.

Defined in s.230(1) · see it in the full Act
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.

Defined in s.230(2) · see it in the full Act
week

“week”—

(a)

in Chapter I of this Part means a week ending with Saturday, and

(b)

otherwise, except in sections 27C, 75F, 75H, 80A, 80B , 80EA , 80EF , 80J and 86 and paragraph 11 of Schedule A1 , means, in relation to an employee whose remuneration is calculated weekly by a week ending with a day other than Saturday, a week ending with that other day and, in relation to any other employee, a week ending with Saturday.

Defined in s.235(1) · see it in the full Act
employer

(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.

Defined in s.230(4) · see it in the full Act

(6) This section has effect subject to sections 43K , 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.

Defined in s.230(6) · see it in the full Act

Cases considering section 222 7

British Airways Plc v Noble & Anor

[2006] EWCA Civ 537 · 9 May 2006Interprets

Interprets the week’s-pay calculation for remuneration varying according to time of work. The consolidated shift rate is treated as the relevant contractual rate for calculating both working-week pay and statutory holiday pay (see paras [16], [33]-[36]). Applies the definition of a week’s pay as remuneration for the average number of weekly normal working hours at the average hourly rate of remuneration. The court accepted section 222 as the applicable statutory machinery for the shift element (see paras [16], [33]-[36]). Applies the provision requiring the average number of weekly hours to be calculated from the employee’s normal working hours during the relevant 12-week period. It forms part of the statutory machinery adopted for determining a week’s pay (see para [16]). Applies the provision treating the average hourly rate as the average rate payable during the relevant 12-week period. The judgment treated the consolidated shift rate as the relevant rate, without treating the 48/52 multiplier as a separate statutory reduction (see paras [16], [33]-[36]). Cited only.

Bamsey & Ors v Albon Engineering & Manufacturing Plc

[2004] EWCA Civ 359 · 25 March 2004

The section averages normal weekly hours and remuneration where their timing and incidence vary. Its reference to normal working hours must be read with section 234 when overtime is payable (see paras [10]–[11]; [30]).

British Gas Trading Ltd v Lock & Anor

[2016] EWCA Civ 983 · 7 October 2016

Section 222 provides the calculation for specified variable working-time arrangements. It did not apply to this worker, who was not a shift worker (see paras [11]–[12]; [22]).

What each judgment says about section 222 is in the case-law panel in the full Act.

Amendments and notes

5 notes from legislation.gov.uk

Modifications

  1. C239Ss. 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
  2. C240Ss. 220-224 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)
  3. C241Ss. 221-224 applied (with modifications) (24.12.2003) by The Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 (S.I. 2003/3049), reg. 11(4)
  4. C242Ss. 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)
  5. C243Ss. 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))