The Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002

Normal weekly earnings E+W+S

40.—(1) For the purposes of Part 12ZA and Part 12ZB of the Act, a person’s normal weekly earnings shall be calculated in accordance with the following provisions of this regulation.

(2) In this regulation—

• “the appropriate date” means—

  (a)

  in relation to statutory paternity pay (birth), the first day of the 14th week before the expected week of the child’s birth or the first day in the week in which the child is born, whichever is the earlier;

  (b)

  in relation to statutory paternity pay (adoption) and statutory adoption pay, the first day of the week after the week in which the adopter is notified of being matched with the child for the purposes of adoption;

• “normal pay day” means a day on which the terms of a person’s contract of service require him to be paid, or the practice in his employment is for him to be paid, if any payment is due to him; and

• “day of payment” means a day on which the person was paid.

(3) Subject to paragraph (4), the relevant period for the purposes of section 171ZJ(6) and 171ZS(6) is the period between—

(a) the last normal pay day to fall before the appropriate date; and

(b) the last normal pay day to fall at least 8 weeks earlier than the normal pay day mentioned in sub-paragraph (a),

including the normal pay day mentioned in sub-paragraph (a) but excluding that first mentioned in sub-paragraph (b).

(4) In a case where a person has no identifiable normal pay day, paragraph (3) shall have effect as if the words “day of payment” were substituted for the words “normal pay day” in each place where they occur.

(5) In a case where a person has normal pay days at intervals of or approximating to one or more calendar months (including intervals of or approximating to a year) his normal weekly earnings shall be calculated by dividing his earnings in the relevant period by the number of calendar months in that period (or, if it is not a whole number, the nearest whole number), multiplying the result by 12 and dividing by 52.

(6) In a case to which paragraph (5) does not apply and the relevant period is not an exact number of weeks, the person’s normal weekly earnings shall be calculated by dividing his earnings in the relevant period by the number of days in the relevant period and multiplying the result by 7.

(7) In any case where a person receives a back-dated pay increase which includes a sum in respect of a relevant period, normal weekly earnings shall be calculated as if such a sum was paid in that relevant period even though received after that period.

[F1 (8) Paragraph (9) applies where for all or part of the relevant period—

(a) a person is a furloughed employee;

(b) the person’s employer has claimed and is in receipt of financial support in respect of the person’s earnings under the Coronavirus Job Retention Scheme; and

(c) the person’s earnings are lower than they would otherwise have been as a result of that person being a furloughed employee.

(9) Where this paragraph applies, the person’s normal weekly earnings are to be calculated as if, during the parts of the relevant period when the person was a furloughed employee, the person was paid the amount which they would have derived from their employment had they not been a furloughed employee.

(10) For the purposes of paragraphs (8) and (9)—

“Coronavirus Job Retention Scheme” (“the Scheme”) means any scheme to provide for payments to be made to employers on a claim made in respect of them incurring costs of employment in respect of furloughed employees arising from the health, social and economic emergency in the United Kingdom resulting from coronavirus and coronavirus disease and contained in such Directions as may be issued from time to time pursuant to section 76 of the Coronavirus Act 2020;

“coronavirus” and “coronavirus disease” have the meanings given in section 1 of that Act;

“furloughed employee” has the meaning given for the purposes of the Scheme.]

Textual Amendments

F1 Reg. 40(8)-(10) inserted (with application in accordance with reg. 2(1)(2) of the amending S.I.) by The Maternity Allowance, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay (Normal Weekly Earnings etc.) (Coronavirus) (Amendment) Regulations 2020 (S.I. 2020/450), regs. 1, 5

Modifications etc. (not altering text)

C1 Reg. 40 applied (with modifications) (30.5.2003) by The Statutory Paternity Pay (Adoption) and Statutory Adoption Pay (Adoptions from Overseas) (No. 2) Regulation 2003 (S.I. 2003/1194), regs. 1, 3