22 Calculation of annual holiday pay if holiday taken in advance

(1)

If an employee takes an annual holiday in advance, the employer must calculate the employee’s annual holiday pay in accordance with subsection (2).

(2)

Annual holiday pay must be—

(a)

for the agreed portion of the annual holidays entitlement; and

(b)

at a rate that is based on the greater of—

(i)

the employee’s ordinary weekly pay as at the beginning of the annual holiday; or

(ii)

the employee’s average weekly earnings for—

(A)

the 12 months immediately before the end of the last pay period before the annual holiday if the employee has worked for the employer for not less than 12 months; or

(B)

the period of employment before the end of the last pay period before the annual holiday if the employee has worked for the employer for less than 12 months.

(3)

To avoid doubt, for the purposes of subsection (2)(b)(ii)(B), the divisor of 52 for the purpose of calculating the employee’s average weekly earnings is to be reduced so that it represents the number of whole or part weeks that the employee worked for the employer in the period of employment.

Compare: 1981 No 15 s 17