Employment Rights Act 1996, section 224

Employments with no normal working hours

Part XIV Interpretation

(1)This section applies where there are no normal working hours for the employee when employed under the contract of employment in force on the calculation date.

(2)The amount of a week’s pay is the amount of the employee’s average weekly remuneration in 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.

(3)In arriving at the average weekly remuneration no account shall be taken of a week in which no remuneration was payable by the employer to the employee and remuneration in earlier weeks shall be brought in so as to bring up to twelve the number of weeks of which account is taken.

(4)This section is subject to sections 227 and 228.

Definitions used in section 224 5

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
employed

and “employed” shall be construed accordingly.

Defined in s.230(5) · 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
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 224 8

Harpur Trust v Brazel

[2022] UKSC 21 · 20 July 2022Interprets

The section applies where the employee has no normal working hours, as was true of the worker in this case (see paras [31]; [49]). A week’s pay is the employee’s average weekly remuneration during the applicable reference period. The statutory average, rather than a percentage of annual earnings, governs holiday pay (see paras [31]; [49]; [55]-[68]). Weeks in which no remuneration was payable must be disregarded, and earlier paid weeks brought in to complete the reference period. This is the defining feature of the Calendar Week Method (see paras [31]-[33]; [49]-[50]; [68]; [76]-[78]).

British Airways Plc v Williams & Ors

[2009] EWCA Civ 281 · 3 April 2009Limits

Section 224 addresses employment with no normal working hours and would have been the applicable provision if the statutory formula applied to pilots. It did not apply because the Aviation Regulations did not adopt it. (see paras [14], [35], [61])

Bamsey & Ors v Albon Engineering & Manufacturing Plc

[2004] EWCA Civ 359 · 25 March 2004Limits

The section calculates average weekly remuneration where an employment has no normal working hours. It could not be used to avoid section 234 where contractual fixed hours and payable overtime existed (see paras [30]; [43]–[46]).

1 more judgment, and what each says about section 224, are 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. C248Ss. 220-224 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)
  3. C249Ss. 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. C250Ss. 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. C251Ss. 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))