Statutory Redundancy 12 Wk Reference Period. What you were paid? Or what you worked?

[LegalBiggles]

Hi all

I'm trying to wrap my head around various aspects of my statutory redundancy and there's one bit that I can't get an answer on. My shifts and pay vary, so I understand a 12 week reference period will be determined, and the earnings from that period used to calculate an average. What I don't know is whether the 12 week period is used to look at:

- Remuneration. The actual money received regardless of when the work for that money was done.
- Work Done. The actual work done regardless of when payment for that work was given.

Most articles simply say money "earned" in the 12 weeks, and - to my mind at least - "earned" could fit both of those.

I hope that makes sense! Just in case it only makes sense to me, a quick example...

My reference period is 01/01/25 to 25/03/25. I did a shift on 28/12/24, payment for which was made on 18/01/25. What happens?

At the other end (using the same reference period), I did a shift on 20/03/25, payment for which was made on 04/04/25. What happens?

Any help to get clarity on this would be fantastic and very much appreciated.

Many thanks

[ULA]

Are you asking this question in order to calculate your week's pay for statutory redundancy payment purposes. In which case it will be the average weekly earnings over the 12 weeks leading up to the redundancy notice period. This includes regular pay, overtime, and bonuses. So you work back 12 weeks worth of what you were actually paid from the notice of redundancy.

[LegalBiggles]

Hi

Thanks for the reply and sorry for the delay - it's all got a bit much to be honest!

Some other articles and other advice I've got still suggests it is based on the hours worked in the 12 week period, rather than the actual date of payment for those hours, so I'm still feeling uncertain.

Also, I've come across the official guidance/law and I *think* it applies to my situation. But then even within that I'm not sure what type of worker I am/was and therefore which part(s) apply to me:

https://www.legislation.gov.uk/ukpga...XIV/chapter/II

My work was as follows:
- I did 60 hours per 4 weeks. This could be split up into any shifts of any length at any time. For example, in a four week period I might do several shifts in a one week but then none in another.
- I also did sleep overs, and for each sleep over I did an additional ten hours of day waking hours. For the sleep itself I was paid a single sum. For the additional ten hours per sleep over, I was paid my normal hourly pay. These were also sporadic. I might do quite a few in one four week period, and then none in another.
- My contract is not particularly clear or accurate with regards any of this, and so I'm not sure which is most relevant - the contract or the practice.

As well as using the above to work out what kind of "worker" I am and therefore what applies in my case, I also don't know how to treat weeks where I did not work (because I did the hours for that week in a different week), and weeks where I was on annual leave. Some of the stuff I've read suggests they're to be included in the 12 week reference period, while others say they should be discounted and you go back another week accordingly until you have a 12 week period.

Sorry for the lengthy post. Any help would be fantastic and most appreciated.

Many thanks

[ULA]

I can appreciate this must be a difficult time for you.

As per my post #2 it is based on the average of what you were paid in the 12 weeks up to the day you received your redundancy notice. If you had a week's holiday in this period then your employer will need to replace it with a earlier week for the purposes of the calculation.

In the page you linked to your situation is set out under 222 Remuneration varying according to time of work.

[LegalBiggles]

Thank you - for both your kindness and your patience in putting up with me!

So just to be clear... If in wk 12 of the reference period (let's say wk starting 03/03/2025) I did 20 hours. But I was not paid for that until a couple of weeks later (and therefore payment was outside of the reference period). That week would not be counted.

And also, if I did 30 hours in a week which was two weeks before the reference period starts (let's call it wk minus2). And I received payment for this three weeks later (so therefore within the reference period). That week would be counted.

Is that all correct? I'm flummoxed if not! It's a bit too much for my autistic brain to cope with! Hopefully this will help clear things up though. And thanks again - I really do appreciate it.

[ULA]

"So just to be clear... If in wk 12 of the reference period (let's say wk starting 03/03/2025) I did 20 hours. But I was not paid for that until a couple of weeks later (and therefore payment was outside of the reference period). That week would not be counted."

Yes if payment was a couple of weeks later and after the date day you got your redundancy notice then it will not be included.

"..if I did 30 hours in a week which was two weeks before the reference period starts (let's call it wk minus2). And I received payment for this three weeks later (so therefore within the reference period). That week would be counted.

Yes that week would be counted..

I hope that makes it all clear for you and I understand that the calculation for individuals who do not work regular hours can be a bit confusing.

If you have any more questions just come back to this thread.

[LegalBiggles]

Thank you very much. What you said does indeed make sense. But now you've made it so clear (thanks!), and I'm re-reading 222 with what we've discussed in mind, I can't get it to tally up....! From my re-reading of 222, the sum is contingent on "the average number of weekly normal working hours", and - perhaps more importantly - it says that "the average number of weekly hours is calculated by dividing by twelve the total number of the employee’s normal working hours during the relevant period of twelve weeks" (my emphasis). That suggests to me that the average to be calculated it is not the pay received in the 12 week reference period but rather than hours worked.

Am I just getting more in a muddle? If so, how can 222 be interpreted to fall in line with what we previously agreed and not with what I've just written above?

I understand if you want/need to run away!

[ULA]

Please do not worry legislation is not always written to be clearly understood by those who are not in the legal profession - we call it legal jargon.

You are still calculating what a weeks pay would be as it is based on hours and rate of pay. Each of the weeks in the 12 week reference period you are paid an hourly rate for the number of hours that are relevant to be paid in that week, which gives a week pay for that week. You then have that for a further 11 weeks giving, when added together, 12 weeks worth of total pay. This is then divided by 12 to give your average weekly pay.

I hope that makes sense.

[LegalBiggles]

To be totally honest, I'm afraid it doesn't make sense to me Which I'm happy to admit is likely down to me!

Or maybe I should put that another way... It does make sense, but only insomuch as it suggests the reference period is used to calculate hours work, which is then used to calculate money earned (what I thought was the case), not actual payments received (which I think is what you are saying is the case).

I can't think how to explain it any better that to have a conversation with your previous post... Me in RED:

You are still calculating what a weeks pay would be as it is based on hours and rate of pay. Makes total sense. Good start! Each of the weeks in the 12 week reference period you are paid an hourly rate Yep. It's going well for the number of hours that are relevant to be paid in that week Ah, but they're not paid in that week. I am paid 4 weekly. So while I might have earned the money in that week by working/giving my time, the payment came later. And so as above, when we're looking at the weeks at the end of the reference period, the actual payment for those - in terms of receiving the hard wonga - is outside of the 12 week reference period, which gives a week pay for that week Yes and no - it tells me what I earned in that week, but not what I received. I won't receive the actual money until a future date. You then have that for a further 11 weeks giving, when added together, 12 weeks worth of total pay. This is then divided by 12 to give your average weekly pay. Makes sense, but again I can only make sense of it only when looking at the actual work done and money earned from that work, not the physical money received which happens in the future.


Thank you so much for sticking with me.

[ULA]

I have followed your lead and coloured coded my response in blue.

You are still calculating what a weeks pay would be as it is based on hours and rate of pay. Makes total sense. Good start! Each of the weeks in the 12 week reference period you are paid an hourly rate Yep. It's going well for the number of hours that are relevant to be paid in that week Ah, but they're not paid in that week. I am paid 4 weekly. The fact you are paid every 4 weeks does not affect the calculation. So while I might have earned the money in that week by working/giving my time, the payment came later. Effectively you are paid in arrears which is normal And so as above, when we're looking at the weeks at the end of the reference period, the actual payment for those - in terms of receiving the hard wonga - is outside of the 12 week reference period, the 12-week reference period is used to fairly calculate redundancy pay for employees with irregular working hours which is what you appear to have. It ensures that the calculation reflects a representative average of your recent earnings, capturing variations in your hours or pay patterns over a reasonable timeframe,which gives a week pay for that week Yes and no - it tells me what I earned in that week, but not what I received. I won't receive the actual money until a future date. As you are paid in arrears hours worked will be paid at a future date. You then have that for a further 11 weeks giving, when added together, 12 weeks worth of total pay. This is then divided by 12 to give your average weekly pay. Makes sense, but again I can only make sense of it only when looking at the actual work done and money earned from that work, not the physical money received which happens in the future. There has to be a starting point for the 12 weeks and working backwards in order for the calculation to be made of average pay. Which regardless of when the hours were worked will be based on averaging out what was actually paid during that period.

The 12-week reference period will not necessarily be the exact hours you have worked in that period it will be the money you received, regardless of when those hours were worked i.e. some of them would have been worked prior to the 12 weeks as you are paid in arrears.

Thank you so much for sticking with me. Not a problem

[LegalBiggles]

OK - thank you very much indeed! I think I'm getting there and won't be adding a third colour. So a collective sigh all round

Can I ask two more questions please?

- As I understand it, if there was a weeks' annual leave, that week is discounted and another added at the start of the reference period in order to to compensate. In my case that would make no difference as I would have still received the same pay regardless.

- If there were weeks where I did not work at all in the reference period, what happens to them? Just to be clear, I'm talking about weeks where I did no hours because on a different week I did more than my usual hours. I'm presuming that nothing needs doing. But because I've read about discounting weeks (and adding an extra week at the start) on weeks in which there was no remuneration, I was 100% sure.

Hopefully all will be clear in my head then, at least for the payment calculation. Thanks to your help that is

I do have other questions about how you should be notified, notice periods and "frustration of contract", but seeing as these are new unrelated queries I thought best to start a new thread on those; unless you or anyone else thinks otherwise?

Huge thanks

[ULA]

I like a good colour coding

Of course you can ask as many questions as you want.

1. If there's a week's holiday during the 12-week reference period for redundancy it should not disrupt the calculation. The reference period considers the average earnings over the 12 weeks, including any holiday pay received during that time.
2. You may well have read that if there was no remuneration in a week during the 12-week reference period, that week is typically excluded from the calculation and instead the reference period is extended backward to include earlier weeks where you did receive pay. However you say "where I did no hours because on a different week I did more than my usual hours" in which case there may not be a need to go back further if the pay for the one week is equivalent to what you would have received if the hours had been split over more than one week.

In terms of any future questions from what you have said it appears they are all based around your redundancy situation, in which case please can you ask them on this thread. It makes it much easier for those of us advising to have all related questions on the same thread and we are always happy to help.

[LegalBiggles]

However you say "where I did no hours because on a different week I did more than my usual hours" in which case there may not be a need to go back further if the pay for the one week is equivalent to what you would have received if the hours had been split over more than one week.

OK, I think that makes sense. But just to be clear, the way it worked is that I did up to 60 hours per 4 weeks. Every 4 week period was different. So in some I might do all 60 hours over two weeks and have two weeks with none. And in other periods I might work, say Wk1 12 hrs, Wk2 15 hrs, Wk3 20 hrs, Wk4 13 hrs.

To complicate things, I also did sleep overs as previously mentioned. And with each of those came an additional 10 day hours. I might go two or three months with none of these at all. And then in another 4 week period do nine.

Perhaps none of this changes anything but I wanted to mention it just in case...

Regarding annual leave, post #4 said "If you had a week's holiday in this period then your employer will need to replace it with a earlier week for the purposes of the calculation."

I promise that's not me arguing! Just trying to get my ducks in an inch perfect row

In terms of any future questions from what you have said it appears they are all based around your redundancy situation, in which case please can you ask them on this thread. It makes it much easier for those of us advising to have all related questions on the same thread and we are always happy to help.

Roger that. I'll hopefully be back shortly with those other questions. Hopefully I'll wrap my head around the answer to those a little easier than I have to my initial questions!!!

Thanks a trillion

[ULA]

Sorry not to have replied sooner, it has been a busy few days for me and I have not logged into the forum.

I completely understand that the pattern of the hours you work varies, however in terms of working out your redundancy pay, the 12 week reference period accounts for fluctuations in pay ensuring that the redundancy payment reflects your typical earnings rather than a single week's pay, which might not be representative.

I hope that my responses are helping to get the ducks all lined up in that row.

Happy to assist.

[LegalBiggles]

Quack quack

Absolutely no need to apologise. I'm extremely grateful for all your help.

The other main concerns/issues I mentioned are around notice. When my employer died I wasn't told anything about redundancy or notice. I wasn't told anything at all! A week or so later after making enquiries (and just presuming I would get notice as per my contract), I was told that I don't get any notice and that the employment terminated on the day he died. They are saying it is "frustration of contract". I feel a little peeved that no one was telling me anything, and more so that I get no notice payment.

So I just wondered if you or anyone has any thoughts on the lack of communication I had and whether frustration of contract definitely applies in this case, meaning I receive no statutory notice pay.

Many thanks