Employment Rights Act 1996 s.223 – Supplementary

(1)For the purposes of sections 221 and 222, in arriving at the average hourly rate of remuneration, only—

(a)the hours when the employee was working, and

(b)the remuneration payable for, or apportionable to, those hours,

shall be brought in.

(2)If for any of the twelve weeks mentioned in sections 221 and 222 no remuneration within subsection (1)(b) was payable by the employer to the employee, account shall be taken of remuneration in earlier weeks so as to bring up to twelve the number of weeks of which account is taken.

(3)Where—

(a)in arriving at the average hourly rate of remuneration, account has to be taken of remuneration payable for, or apportionable to, work done in hours other than normal working hours, and

(b)the amount of that remuneration was greater than it would have been if the work had been done in normal working hours (or, in a case within section 234(3), in normal working hours falling within the number of hours without overtime),

account shall be taken of that remuneration as if the work had been done in such hours and the amount of that remuneration had been reduced accordingly.

Definitions used in section 223 3

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
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 223 4

Bamsey & Ors v Albon Engineering & Manufacturing Plc

[2004] EWCA Civ 359 · 25 March 2004

The subsection regulates the treatment of remuneration for work outside normal hours when calculating the average hourly rate. Enhanced overtime pay is reduced to the corresponding basic rate for that calculation (see paras [11]; [40]). The express reference to section 234 demonstrates that its definition forms part of the calculation scheme incorporated by regulation 16 (see paras [29]; [32]–[33]).

Toni & Guys (St Paul's) Ltd v Georgiou

[2013] UKEAT 85_13_1907 · 19 July 2013

Section 223(1) confines the average-hourly-rate calculation to hours actually worked and remuneration payable for or apportionable to them. It supported the conclusion that the basic award had to use actual earnings. (see paras [7]; [11])

Amey Services Ltd v. Bate & Ors

[2018] UKEAT 0082_17_2002 · 20 February 2018

The EAT treated the information sought concerning the statutory holiday-pay calculation as a material requirement of the unless order. The Tribunal had to assess compliance with that requirement before granting relief.

1 more judgment, and what each says about section 223, are in the case-law panel in the full Act.

Amendments and notes

5 notes from legislation.gov.uk

Modifications

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
C244Ss. 220-224 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)
C245Ss. 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)
C246Ss. 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)
C247Ss. 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))