Section 104 | Calculation of the required sum

(1)For the purposes of section 103(2), the “required sum” is whichever is the greater of the following sums—

(a)the sum that was due to the underpaid individual on the relevant day;

(b)in a case where regulations under subsection (2) apply, the sum determined in accordance with the regulations.

This is subject to subsection (4).

(2)Regulations made by the Secretary of State may make provision for determining the sum required to be paid to an individual by a notice of underpayment in a case where the sum due to the individual on any day under or by virtue of a statutory pay provision would have been greater had that sum been determined by reference to the statutory pay provision as it has effect at the time of giving the notice of underpayment.

(3)But regulations under subsection (2) may not make provision in relation to any provision of the National Minimum Wage Act 1998 (see instead section 17 of that Act).

(4)If the required sum in respect of an underpaid individual would (in the absence of this subsection) be greater than the specified maximum for the statutory pay provision concerned, the required sum in respect of the underpaid individual is the specified maximum.

(5)For the purposes of subsection (4) “the specified maximum”, in relation to a statutory pay provision, means an amount specified by, or determined in accordance with, regulations made by the Secretary of State.

(6)Regulations under this section are subject to the affirmative resolution procedure.