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, bereavement leave, or domestic violence 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).

Section 9A(1): amended, on 1 April 2019, by section 22 of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).