Employment Rights Act 1996, section 234

Normal working hours

Part XIV Interpretation

(1)Where an employee is entitled to overtime pay when employed for more than a fixed number of hours in a week or other period, there are for the purposes of this Act normal working hours in his case.

(2)Subject to subsection (3), the normal working hours in such a case are the fixed number of hours.

(3)Where in such a case—

(a)the contract of employment fixes the number, or minimum number, of hours of employment in a week or other period (whether or not it also provides for the reduction of that number or minimum in certain circumstances), and

(b)that number or minimum number of hours exceeds the number of hours without overtime,

the normal working hours are that number or minimum number of hours (and not the number of hours without overtime).

Definitions used in section 234 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
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
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
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

(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 234 8

Bamsey & Ors v Albon Engineering & Manufacturing Plc

[2004] EWCA Civ 359 · 25 March 2004Defines

Where overtime pay becomes payable after a fixed number of hours, the employment has normal working hours for the statutory calculation scheme (see paras [7]–[9]; [27]). Subject to subsection (3), normal working hours are the fixed hours before overtime becomes payable. Regular additional hours are insufficient without the contractual obligations specified by the section (see paras [7]–[10]; [27]). Overtime enters normal working hours where the contract fixes a number or minimum number of hours exceeding the hours before overtime. This requires the employer to provide and the employee to perform those hours (see paras [7]–[10]; [27]).

Dudley Metropolitan Borough Council v Willetts & Ors

[2017] UKEAT 334_16_3107 · 31 July 2017Limits

Section 234 treats fixed contractual hours as normal working hours and excludes non-fixed overtime from the domestic week’s-pay calculation. The court accepted that the disputed voluntary payments were excluded on the face of that scheme, but held that Article 7 governed Regulation 13 holiday pay. (see paras [12]-[14])

Crossland v Corps Of Commissionaires Management Ltd

[2010] UKEAT 0014_10_1808 · 18 August 2010Interprets

Defines normal working hours for the statutory calculation by reference to fixed contractual hours where overtime is payable. The judgment applied that provision through regulation 16 and treated contractual hours, rather than hours including overtime, as the statutory basis for holiday pay (see paras [15]-[17]).

1 more judgment, and what each says about section 234, are in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Modifications

  1. C267S. 234 applied (prosp.) by Education and Skills Act 2008 (c. 25), ss. 5(5), 173(4) (with ss. 62(1)(5)(6), 64(1)(5)(6))
  2. C268S. 234 applied (28.6.2013) by Education and Skills Act 2008 (c. 25), ss. 5(5), 173(4) (with ss. 62(1)(5)(6), 64(1)(5)(6)); S.I. 2013/1204, art. 2(e)