The Employment Rights Act 1996 (Coronavirus, Calculation of a Week's Pay) Regulations 2020

Publication Date:January 01, 2020
 
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2020No. 814

EMPLOYMENT

The Employment Rights Act 1996 (Coronavirus, Calculation of a Week's Pay) Regulations 2020

Made29thJuly2020

Laid before Parliament30thJuly2020

Coming into force31stJuly2020

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 228(4) and 236(5) of the Employment Rights Act 1996( 1).

PART 1

Introductory

Citation and commencement

1. These Regulations may be cited as the Employment Rights Act 1996 (Coronavirus, Calculation of a Week's Pay) Regulations 2020 and come into force on 31st July 2020.

Interpretation

2.—(1) In these Regulations—

“the Act” means the Employment Rights Act 1996;

“Coronavirus Job Retention Scheme” means the scheme of that name established by the first CJRS Direction, as modified by the second CJRS Direction and the third CJRS Direction( 2);

“E” has the meaning given in regulation 3(1);

“the first CJRS Direction” means the Coronavirus Act 2020 Functions of Her Majesty's Revenue and Customs (Coronavirus Job Retention Scheme) Direction, given by the Treasury under sections 71 and 76 of the Coronavirus Act 2020( 3) on 15th April 2020;

“flexibly-furloughed employee” has the meaning given in paragraph 10.1 to 10.3 of the Schedule to the third CJRS Direction( 4);

“furloughed employee” has the meaning given in paragraph 6.1 to 6.12 of the Schedule to the second CJRS Direction, as modified by paragraph 4 of the Schedule to the third CJRS Direction;

“furloughed hours”, in relation to E, means those hours that E does not work as the result of an instruction given by their employer for the purposes of the Coronavirus Job Retention Scheme;

“the relevant date”, in relation to E—

(a) means the calculation date( 5), in any case where—

(i) E's working hours under their contract of employment changed, on or after the date on which E became furloughed but before the calculation date, and

(ii) at the time that change was made, its contractual effect was that the change in working hours was to continue when E ceased to be furloughed or flexibly-furloughed, and

(b) in any other case, means the date immediately before the date on which E became furloughed;

“the second CJRS Direction” means the Coronavirus Act 2020 Functions of Her Majesty's Revenue and Customs (Coronavirus Job Retention Scheme) Direction, given by the Treasury under sections 71 and 76 of the Coronavirus Act 2020 on 20th May 2020;

“the third CJRS Direction” means the Coronavirus Act 2020 Functions of Her Majesty's Revenue and Customs (Coronavirus Job Retention Scheme) Direction, given by the Treasury under sections 71 and 76 of the Coronavirus Act 2020 on 25th June 2020.

(2) Except in this paragraph and paragraph (1), any reference in these Regulations to an employee who is, or has been, “furloughed” is to an employee who is, or has been, a furloughed employee or a flexibly-furloughed employee.

(3) For the purposes of these Regulations, where E becomes furloughed more than once, “the date on which E became furloughed” means the first date on which E became furloughed.

(4) For the purposes of these Regulations, any reference to remuneration varying with the amount of work done includes remuneration which may include any commission or similar payment which varies in amount.

PART 2

Calculation of a week's pay

Calculation of a week's pay in relation to furloughed employees

3.—(1) These Regulations prescribe the manner in which the amount of a week's pay( 6) is to be calculated in the case of an employee who is, or has been, furloughed (“E”), subject to paragraph (2), where—

(a) E is entitled pursuant to section 53 or 54 of the Act to be paid remuneration for a period of absence to look for employment or arrange training as a result of a notice of dismissal given on or after the date on which E became furloughed, for the calculation of that remuneration under Part 6 of the Act,

(b) E is entitled to payment pursuant to section 88 or 89 of the Act as a result of a notice to terminate E's contract of employment given on or after the date on which E became furloughed, for the calculation of that payment under Part 9 of the Act,

(c) E is entitled pursuant to section 93 of the Act to be paid a sum as a result of a failure by their employer relating to the obligation to provide a written statement giving particulars of the reasons for E's dismissal, and the notice to terminate E's contract of employment was given or (if the dismissal was without notice) the date of termination was on or after the date on which E became furloughed, for the calculation of that sum under Part 9 of the Act,

(d) E is entitled pursuant to section 117 of the Act to be paid an additional award of compensation as a result of a failure by their employer to comply with an order for reinstatement or re-engagement, and the notice to terminate E's contract of employment was given or (if the dismissal was without notice) the date of termination was on or after the date on which E became furloughed, for the calculation of that additional award under Part 10 of the Act,

(e) E is entitled to an award of compensation for unfair dismissal calculated in accordance with sections 118 to 126 of the Act, and the notice to terminate E's contract of employment was given or (if the dismissal was without notice) the date of termination was on or after the date on which E became furloughed, for the calculation of that award under Part 10 of the Act,

(f) E is entitled to a redundancy payment under Part 11 of the Act, and the notice to terminate E's contract of employment was given or (if the dismissal was without notice) the date of termination was on or after the date on which E became furloughed, for the calculation of that redundancy payment under Part 11 of the Act, and

(g) E may be eligible for a redundancy payment in accordance with section 148 of the Act by reason of being laid off or kept on short-time on or after the date on which E became furloughed, for the assessment of whether E is to be taken to be kept on short-time for a week in accordance with section 147(2) of the Act.

(2) These Regulations only apply—

(a) in a case where regulation 4 applies, where the calculation date is on or before 31st October 2020( 7),

(b) in a case where regulation 5, 6 or 8 applies, where the relevant period, within the meaning given in regulation 5, 6 or 8 (as the case may be), includes a week when E was furloughed.

(3) For the purposes of paragraph (1), “the date of termination” means the date on which termination of E's contract of employment takes effect.

Normal working hours and remuneration does not vary with the amount of work done

4.—(1) This regulation applies where E's remuneration fell within the description in section 221(2) of the Act (remuneration for employment in normal working hours which does not vary with the amount of work done) on the relevant date.

(2) The amount of a week's pay is the amount which is payable by the employer under E's contract of employment in force on the calculation date if E works throughout E's normal working hours in a week, and for these purposes—

(a) E's normal working hours, in relation to any period during which E is furloughed, include E's furloughed hours, and

(b) the amount which is payable, in relation to any period during which E is furloughed, is to be calculated disregarding any reduction in the amount payable as a result of E being furloughed.

(3) This regulation is subject to regulations 6, 9 and 10.

Normal working hours and remuneration varies with the amount of work done

5.—(1) This regulation applies where E's remuneration fell within the description in section 221(3) of the Act (remuneration for employment in normal working hours which varies with the amount of work done) on the relevant date.

(2) The amount of a week's pay is the amount of remuneration for the number of normal working hours in a week, calculated at the average hourly rate of remuneration payable by the employer to E in respect of the relevant period.

(3) Where E is furloughed for any part of the relevant period—

(a) E's normal working hours in a week, in relation to that part of the relevant...

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