For information: • on the right to paid holiday under the Working Time Regulations 1998 (WTR 1998), SI 1998/1833, see Practice Notes: Holiday and Holiday pay • on the interaction between holiday and sick leave, see Practice Note: Holiday and sickness absence • on statutory sick pay, see Practice Note: Sick pay Holiday and holiday pay It is clear that: • holiday continues to accrue during sick leave, and • a worker can elect to take their holiday entitlement during a period of sick leave For

In order to qualify for statutory maternity pay (SMP), it is necessary for a woman to be or have been an employee as defined and to satisfy the following conditions: • she must have been in employment for a continuous period of at least 26 weeks ending with the week immediately preceding the 14th week before the expected week of confinement (ie childbirth) • her average weekly earnings in the last eight weeks of the 26-week period must be not less than the lower earnings limit in force at the end of that week (ie enough for her to have to pay Class 1 national insurance contributions). The lower earnings limit is £112 per week with effect from 6 April 2015 • she must have become pregnant and have reached, or given birth before reaching, the commencement of the 11th week before the expected week of confinement • she must have given

For information on calculating a statutory redundancy payment generally, see the section of Practice Note: Entitlement to statutory redundancy payment entitled How the payment is calculated. For information on calculating a week’s pay for these and other purposes, see Practice Note: Calculating a week's pay. Q1. Under sections 221–224 of the Employment Rights Act 1996 (ERA 1996), different methods of calculating a week’s pay apply, depending on the pattern of the working hours of the employee concerned, in particular whether the

Where there is a relevant transfer within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246, reg 3(1), subject to an employee's right to object to the transfer, the contracts of employment of those employees employed by the transferor and 'assigned to the organised grouping of resources or employees that is subject to the relevant transfer', and which would otherwise be terminated by the transfer, automatically transfer to the transferee and have effect after the transfer as if originally made between the employee and the transferee. The reference to a person employed by the transferor and assigned to the organised grouping of resources or employees that is subject to the relevant transfer is to a person

The employment tribunals have jurisdiction: • in relation to a number of statutory claims • in relation to contractual disputes, subject to certain restrictions For information: • on the statutory provisions conferring jurisdiction on the employment tribunals, see: Employment tribunal time limits checklist • on

For information: • on the revised Coronavirus Job Retention Scheme (CJRS), see Practice Note: Coronavirus Job Retention Scheme (extended version 1 July to 31 October 2020) [Archived] • on holiday and holiday pay during the coronavirus (COVID-19) pandemic, see Practice Note: Coronavirus (COVID-19)—holiday and holiday pay [Archived] • on holiday and holiday issues generally, see Practice Notes: Holiday and Holiday pay It is clear that: • employees can take holiday while on furlough • the legal framework for calculating holiday pay applies to furloughed workers exactly as it applies to those not on furlough See the section of Practice Note: Coronavirus (COVID-19)—holiday and holiday pay [Archived] entitled: Furloughed workers, under the heading ‘Holiday pay’. The BEIS guidance Holiday entitlement and pay during coronavirus (COVID-19) has not been updated since it was first published in May 2020, and does not deal specifically with flexible furlough under the revised

Statutory redundancy payment A redundancy payment is calculated by: • determining the employee’s number of complete years of continuous employment ending with the ‘relevant date’, and • allowing the appropriate number of weeks for each year. This is done by looking at (a) the whole period of employment if overall service is 20 years or less, or (b) the 20 years terminating with the ‘relevant date’ if the overall service is more than that. Within that period, working backwards from the ‘relevant date’: ◦ high band: count one and a half weeks for every complete year of service throughout which the employee was aged 41 or over ◦ middle band: count one week for every complete year of service (not including years already accounted for as high band years, if there were

For information: • on the obligations to inform and consult under the Transfer of Employment (Protection of Employees) Regulations 2006 (TUPE 2006), SI 2006/246, see Practice Note: TUPE—information and consultation • on protection from dismissal under TUPE 2006, SI 2006/246, see Practice Note: TUPE—protection against dismissal • on the right to bring an unfair dismissal claim generally, see Practice Note: Entitlement to claim unfair dismissal For information on

Where an employee who has been dismissed for redundancy is offered their old job back or is offered another job (with the same employer or an associated employer), and they restart employment within four weeks of the previous one ending, they are considered not to have been dismissed and are not entitled to a redundancy payment (section 138(1) of the Employment Rights Act 1996 (ERA 1996)). For further information, see Practice Note: Renewal of contract, re-engagement and trial periods. When it comes to determining whether an employee’s continuity of employment is preserved during the gap between their old

For statutory rights under the Employment Rights Act 1996 (ERA 1996), there is a set way of calculating continuity which overrides any agreement between employer and employee. It depends on: • when the continuous period starts • when the continuous period ends • whether anything happens to break continuity between the start and the end • whether any period of employment with another employer counts For further information see Practice Note: Continuity of employment. The

For information on maternity leave generally, see Practice Note: Maternity leave. The interaction between holiday and maternity leave and other types of family leave is complex. As maternity leave can only be taken by a woman, issues of sex discrimination have influenced the approach taken by the European Court of Justice (ECJ) in relation to rights to holiday entitlement. Other types of family leave are, of course, available to those eligible of both sexes, and so sex discrimination is less relevant. All contractual terms (except those relating to remuneration) subsist during both ordinary maternity leave and additional maternity leave (sections 71(5) and 73(5) of the Employment Rights Act 1996, Maternity and Parental Leave etc Regulations 1999, (MAPLE 1999), SI 1999/3312, reg 9(1)–(2)). See Practice Note: Maternity leave—Rights during ordinary and additional maternity leave. Women therefore accrue statutory and contractual leave in the normal

The Supreme Court in Hartley considered the question of the correct deduction from an employee’s pay in respect of strike days that were not worked. It described two distinct legal routes by which an employer may claim the right to withhold a day's pay from striking workers: • the employer may be entitled to damages for the employee's breach of the contract of employment in refusing to work and may be entitled to withhold a sum equivalent to his entitlement to damages by way of equitable set-off: Sim v Rotherham MBC • the employer may rely upon the principle that the employee is not entitled to be paid if he is not ready and willing to perform the work which he was employed to do: Miles Where, as in Hartley, the employer relies on the second route: • although the withholding of pay is often colloquially described as a