Protective award

Q: How do we calculate a day's pay for the purpose of a protective award?

A: Section 190 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) specifies that the rate of pay for the protective award is a week's pay for each week of the protected period, as calculated under Part XIV (sections 221 to 229) of the Employment Rights Act 1996 (ERA). A period of less than one week is calculated by reducing the amount of a week's pay "proportionately".

This is the standard method of calculating a week's pay for all statutory purposes, including unfair dismissal, holiday pay and the protective award). For some of these purposes, the amount of a week's pay is capped (currently at £310), but for a protective award it is not.

Generally speaking, if the employee works the same hours every week, s/he will get whatever s/he is normally paid for a week under the contract; if the hours vary (for example, through shift work) or there are no normal working hours, the amount of a week's pay is the average over the previous 12 weeks.

The calculation of a day's pay, the EAT has said, should be based on a working week in accordance with good industrial relations practice and the Working Time Regulations 1998 (Leisure Leagues UK Ltd v Maconnachie [2002] IRLR 600).