Employment Rights Act 1996 s.229 – Supplementary

(1)In arriving at—

(a)an average hourly rate of remuneration, or

(b)average weekly remuneration,

under this Chapter, account shall be taken of work for a former employer within the period for which the average is to be taken if, by virtue of Chapter I of this Part, a period of employment with the former employer counts as part of the employee’s continuous period of employment.

(2)Where under this Chapter account is to be taken of remuneration or other payments for a period which does not coincide with the periods for which the remuneration or other payments are calculated, the remuneration or other payments shall be apportioned in such manner as may be just.

Definitions used in section 229 3

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

employment

(5) In this Act “employment”—

(a)in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

(b)in relation to a worker, means employment under his contract;

Defined in s.230(5) · see it in the full Act

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

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

Cases considering section 229 4

Harpur Trust v Brazel

[2022] UKSC 21 · 20 July 2022Limits

The provision permits just apportionment where remuneration relates to a period different from the period for which it was calculated. It is not incorporated into regulation 16 and is not a general power to replace the statutory week’s-pay calculation (see paras [33]; [77]).

Davies v Droylsden Academy

[2016] UKEAT 0044_16_1110 · 11 October 2016Disapplies

The court held that the Employment Judge wrongly applied the approach to a week’s pay and just apportionment under this provision. It was irrelevant to the wages and contractual-pay claim. (see paras [37]; [41])

Winchester And Eastleigh Healthcare NHS Trust v Walker

[2011] UKEAT 0048_11_2406 · 24 June 2011

The statutory formula for a week’s pay forms part of the structured calculation of the basic award. The judgment noted the provision but resolved the appeal principally by determining the legally countable period of continuous employment. (see para [6])

1 more judgment, and what each says about section 229, are in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Modifications

C264Ss. 226-229 applied (with modifications) (4.3.1998) by S.I. 1998/192, reg. 37(1)