39.—(1) For the purposes of section 171ZJ(6) (normal weekly earnings for the purposes of Part 12ZA of the Act) and of section 171ZS(6) of the Act (normal weekly earnings for the purposes of Part 12ZB of the Act), the expression “earnings” shall be construed in accordance with the following provisions of this regulation.
(2) The expression “earnings” refers to gross earnings and includes any remuneration or profit derived from a person’s employment except any payment or amount which is—
(a)excluded from the computation of a person’s earnings under regulation 25 of and Schedule 3 to, and regulation 123 of, the Contributions Regulations (payments to be disregarded) and regulation 27 of those Regulations (payments to directors to be disregarded) [F1(or would have been so excluded had he not been under the age of 16)];
(b)a chargeable emolument under section 10A of the Act, except where, in consequence of such a chargeable emolument being excluded from earnings, a person would not be entitled to statutory paternity pay or, as the case may be, statutory adoption pay [F2(or where such a payment or amount would have been so excluded and in consequence he would not have been entitled to statutory paternity pay or, as the case may be, statutory adoption pay had he not been under the age of 16)].
(3) For the avoidance of doubt, “earnings” includes—
[F3(za)any amount retrospectively treated as earnings by regulations made by virtue of section 4B(2) of the Act;]
(a)any sum payable in respect of arrears of pay in pursuance of an order for reinstatement or re-engagement under the Employment Rights Act 1996;
(b)any sum payable by way of pay in pursuance of an order made under the Employment Rights Act 1996 for the continuation of a contract of employment;
(c)any sum payable by way of remuneration in pursuance of a protective award under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 M1;
(d)any sum payable by way of statutory sick pay, including sums payable in accordance with regulations made under section 151(6) of the Act;
(e)any sum payable by way of statutory maternity pay;
(f)any sum payable by way of statutory paternity pay;
(g)any sum payable by way of statutory adoption pay.
Textual Amendments
F1Words in reg. 39(2)(a) inserted (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), reg. 1(1), Sch. 8 para. 61(2)
F2Words in reg. 39(2)(b) inserted (1.10.2006) by The Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), reg. 1(1), Sch. 8 para. 61(3)
F3Reg. 39(3)(za) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Social Security, Occupational Pension Schemes and Statutory Payments (Consequential Provisions) Regulations 2007 (S.I. 2007/1154), regs. 1(1), 6(2)
Modifications etc. (not altering text)
C1Regs. 31-39 applied (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(1)–(3)
Marginal Citations