Employment Rights Act 1996, section 88

Employments with normal working hours

Part IX Termination of employment

(1)If an employee has normal working hours under the contract of employment in force during the period of notice and during any part of those normal working hours—

(a)the employee is ready and willing to work but no work is provided for him by his employer,

(b)the employee is incapable of work because of sickness or injury,

(c)the employee is absent from work wholly or partly because of pregnancy or childbirth[F595 or on [F596 adoption leave, [F597 shared parental leave,F597] [F598 carer’s leave,F598] [F599 parental bereavement leave,F599] [F600 neonatal care leave,F600] parental leave or [F601 paternity leaveF601,F596,F595]]] , or

(d)the employee is absent from work in accordance with the terms of his employment relating to holidays,

the employer is liable to pay the employee for the part of normal working hours covered by any of paragraphs (a), (b), (c) and (d) a sum not less than the amount of remuneration for that part of normal working hours calculated at the average hourly rate of remuneration produced by dividing a week’s pay by the number of normal working hours.

(2)Any payments made to the employee by his employer in respect of the relevant part of the period of notice (whether by way of sick pay, statutory sick pay, maternity pay, statutory maternity pay, [F602paternity pay, [F603 statutory paternity payF603] , adoption pay, statutory adoption pay,F602][F604 shared parental pay, statutory shared parental pay,F604][F605 parental bereavement pay, statutory parental bereavement pay,F605][F606 neonatal care pay, statutory neonatal care pay,F606] holiday pay or otherwise) go towards meeting the employer’s liability under this section.

(3)Where notice was given by the employee, the employer’s liability under this section does not arise unless and until the employee leaves the service of the employer in pursuance of the notice.

Definitions used in section 88 12

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
period of notice

(3) In sections 88 to 91 “period of notice” means—

(a)where notice is given by an employer, the period of notice required by section 86(1), and

(b)where notice is given by an employee, the period of notice required by section 86(2).

Defined in s.87(3) · 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
childbirth

“childbirth” means the birth of a living child or the birth of a child whether living or dead after twenty-four weeks of pregnancy,

Defined in s.235(1) · see it in the full Act
shared parental leave

“shared parental leave” means leave under section 75E or 75G,

Defined in s.235(1) · see it in the full Act
carer’s leave

“carer’s leave” means leave under section 80J,

Defined in s.235(1) · see it in the full Act
parental bereavement leave

“parental bereavement leave” means leave under section 80EA;

Defined in s.235(1) · see it in the full Act
neonatal care leave

“neonatal care leave” means leave under section 80EF,

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

“paternity leave” means leave under section 80A or 80B,

Defined in s.235(1) · 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
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

Cases considering section 88 4

Milson v Hope

[2013] UKEAT 0391_12_0703 · 7 March 2013

Section 88(1) required notice pay during the claimant’s two-week statutory minimum notice period despite sickness absence. It did not create liability for the additional two weeks of notice actually given (see paragraph beginning “However, Mr Rees' second ground of appeal is more firmly based”). Statutory sick pay received during the relevant statutory notice period went towards satisfying the employer’s section 88 liability. The court used that deduction in reaching the substituted award (see paragraph beginning “However, Mr Rees' second ground of appeal is more firmly based”).

Burlo v Langley & Anor

[2006] EWCA Civ 1778 · 21 December 2006Limits

Section 88 is described as requiring average-rate payment during the statutory minimum notice period where a sick employee has normal working hours. The court observed that Parliament had defined the extent of the full-rate obligation. (see paras [6]; [61])

British Heart Foundation v Roy (Debarred) (Contract of Employment: Wrongful dismissal)

[2015] UKEAT 0049_15_1607 · 16 July 2015Limits

Section 88 did not determine whether the dismissal was wrongful, although it might be relevant to compensation (see para [13]).

What each judgment says about section 88 is in the case-law panel in the full Act.

Amendments and notes

12 notes from legislation.gov.uk

Amendments

  1. F595Words in s. 88(1)(c) inserted (15.12.1999) by 1999 c. 26, s. 9, Sch. 4 Pt. III para. 10; S.I. 1999/2830, art. 2(2), Sch. 1 Pt. II (with Sch. 3 paras. 10, 11)
  2. F596Words in s. 88(1)(c) substituted (8.12.2002) by Employment Act 2002 (c. 22), s. 53, Sch. 7 para. 29(2); S.I. 2002/2866, art. 2(2), Sch. 1 Pt. 2
  3. F597Words in s. 88(1)(c) inserted (1.12.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 37(2)(a); S.I. 2014/1640, art. 5(2)(l)
  4. F598Words in s. 88(1)(c) inserted (4.12.2023) by Carer’s Leave Act 2023 (c. 18), s. 3(3), Sch. para. 6; S.I. 2023/1283, reg. 2
  5. F599Words in s. 88(1)(c) inserted (18.1.2020) by Parental Bereavement (Leave and Pay) Act 2018 (c. 24), s. 2(2), Sch. para. 25(2); S.I. 2020/45, reg. 2
  6. F600Words in s. 88(1)(c) inserted (17.1.2025) by Neonatal Care (Leave and Pay) Act 2023 (c. 20), s. 3(3), Sch. para. 26(2); S.I. 2025/41, reg. 2
  7. F601Words in s. 88(1)(c) substituted (5.4.2015) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 37(2)(b); S.I. 2014/1640, art. 7(r) (with art. 16)
  8. F602Words in s. 88(2) inserted (8.12.2002) by Employment Act 2002 (c. 22), s. 53, Sch. 7 para. 29(3); S.I. 2002/2866), {art. 2(2)}, Sch. 1 Pt. 2
  9. F603Words in s. 88(2) substituted (5.4.2015) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 37(3)(a); S.I. 2014/1640, art. 7(r) (with art. 16)
  10. F604Words in s. 88(2) inserted (1.12.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 7 para. 37(3)(b); S.I. 2014/1640, art. 5(2)(l)
  11. F605Words in s. 88(2) inserted (18.1.2020) by Parental Bereavement (Leave and Pay) Act 2018 (c. 24), s. 2(2), Sch. para. 25(3); S.I. 2020/45, reg. 2
  12. F606Words in s. 88(2) inserted (17.1.2025) by Neonatal Care (Leave and Pay) Act 2023 (c. 20), s. 3(3), Sch. para. 26(3); S.I. 2025/41, reg. 2