9A Average daily pay

(1)

An employer may use an employee’s average daily pay for the purposes of calculating payment for a public holiday, an alternative holiday, sick leave, or bereavement leave if—

(a)

it is not possible or practicable to determine an employee’s relevant daily pay under section 9(1); or

(b)

the employee’s daily pay varies within the pay period when the holiday or leave falls.

(2)

The employee’s average daily pay must be calculated in accordance with the following formula:

a
b

where—

a

is the employee’s gross earnings for the 52 calendar weeks before the end of the pay period immediately before the calculation is made

b

is the number of whole or part days during which the employee earned those gross earnings, including any day on which the employee was on a paid holiday or paid leave; but excluding any other day on which the employee did not actually work.

(3)

To avoid doubt, if subsection (2) is to be applied in the case of a public holiday, the amount of pay does not include any amount that would be added by virtue of section 50(1)(a) (which relates to the requirement to pay time and a half).

Section 9A: inserted, on 1 April 2011, by section 5 of the Holidays Amendment Act 2010 (2010 No 126).