Regulation 40 Average salary: supplemental

(1)

This regulation has effect for the purposes of regulations 37 (average salary: teacher in pensionable employment etc. on or after 1st January 2007) and 39 (restrictions on average salary).

(2)

The average salary service of a person (P) is—

(a)

any period spent by P in pensionable employment;

(b)

any period in respect of which P has paid contributions under regulation C9 of TPR 1997 or under regulation 19 (election to pay contributions by a person serving in a reserve force);

(c)

any period spent by P in comparable British service—

(i)

which began before 1st April 1974,

(ii)

which has not been followed by a period of pensionable employment, and

(iii)

in respect of which the Secretary of State has not paid a transfer value.

(3)

For the purpose of paragraph (2)(a) where P is employed under a contract for irregular work, P must not be treated as being in employment during any period when P does not undertake work.

(4)

A period of average salary service may be discontinuous.

(5)

Except as provided in paragraphs (6) to (8), the relevant salary of a person (P) is—

(a)

for any period mentioned in paragraph (2)(a), P's contributable salary or, where the period relates to part-time employment, the full-time equivalent of P's contributable salary;

(b)

for any period mentioned in paragraph (2)(b), the notional salary by reference to which P paid contributions or, where the notional salary relates to part-time employment, the full-time equivalent of the notional salary;

(c)

for any period mentioned in paragraph (2)(c) F1..., the salary by reference to which P's pension would have been calculated under the rules of the pension scheme relating to the comparable British service.

(6)

Where P is in pensionable employment under more than one contract for part-time employment at the same time (“concurrent employment”), P's relevant salary during any period in which the annual rate of the full-time equivalent of P's contributable salary under each such contract does not change (“the relevant salary period”) is A/B, where—

A is the sum of E for each contract,
B is the sum of E/FTE calculated in relation to each contract,
E is P's contributable salary during the relevant salary period, and
FTE is the annual rate of the full-time equivalent of P's contributable salary during the relevant salary period.

(7)

For the purpose of paragraph (6)—

(a)

a “contract for part-time employment” includes a contract for irregular work;

(b)

where P is employed under a contract for irregular work, P is to be treated as being in pensionable employment during any period when P does not undertake work.

(8)

But where one of the contracts of employment mentioned in paragraph (6) is a contract for irregular work and another is not, P's relevant salary during concurrent employment is the greater of—

(a)

the average annual rate of P's relevant salary calculated in accordance with paragraph (6), and

(b)

the average annual rate of P's relevant salary calculated in accordance with paragraph (6) as if any contract for irregular work were disregarded.

(9)

For the purpose of this regulation, P's contributable salary in any pensionable employment—

(a)

includes any amount by which P's salary is reduced during sick leave or adoption, maternity, parental F2, F3shared parental F4, parental bereavement or paternity F5... leave;

(b)

includes for any period beginning after 31st July 1975 and ending before 1st August 1978 any sum which would have been payable to P but for the limits on remuneration mentioned in section 1 of the Remuneration, Charges and Grants Act 1975 M1;

(c)

is for any period beginning after 31st March 1979 and ending before 1st September 1980 P's notional salary under the Teachers' Superannuation (Notional Salaries) Regulations 1981 M2.

(10)

For the purpose of this regulation, the notional salary mentioned in paragraph (5)(b)—

(a)

includes for any period beginning after 31st July 1975 and ending before 1st August 1978 any sum by reference to which the notional salary would have been calculated but for the limits on remuneration mentioned in section 1 of the Remuneration, Charges and Grants Act 1975;

(b)

is for any period beginning after 31st March 1979 and ending before 1st September 1980 P's notional salary under the Teachers' Superannuation (Notional Salaries) Regulations 1981.

(11)

In this regulation a “contract for irregular work” means a contract of employment pursuant to which the employee is available for work but undertakes and is paid for work only when and for periods requested by the employer.

Annotations

Textual amendments

F1: Words in reg. 40(5)(c) omitted (1.4.2011) by virtue of The Teachers’ Pensions (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/614), reg. 1, Sch. 2 para. 5
F2: Words in reg. 40(9)(a) substituted (1.4.2011) by The Teachers’ Pensions (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/614), reg. 1, Sch. 2 para. 1(1)(2)
F3: Words in reg. 40(9)(a) inserted (31.12.2014) by The Shared Parental Leave and Statutory Shared Parental Pay (Consequential Amendments to Subordinate Legislation) Order 2014 (S.I. 2014/3255), arts. 1(2), 22(5)(a)
F4: Words in reg. 40(9)(a) inserted (6.4.2020) by The Parental Bereavement Leave and Pay (Consequential Amendments to Subordinate Legislation) Regulations 2020 (S.I. 2020/354), regs. 1, 20(5)
F5: Words in reg. 40(9)(a) omitted (5.4.2015) by virtue of The Shared Parental Leave and Statutory Shared Parental Pay (Consequential Amendments to Subordinate Legislation) Order 2014 (S.I. 2014/3255), arts. 1(3), 22(5)(b) (with art. 35(1))

Marginal citations

M1: 1975 c. 57; section 1 was amended, and the period for which it had effect extended to end with 31st July 1978, by the Price Commission Act 1977 (c.33), section 17; references to limits set out in documents laid before Parliament in 1976 and 1977 were added by S.I. 1976/1097 and 1977/1294.
M2: S.I. 1981/934