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SS (Categorisation of Earners) Regulations 1978 (SI 1978 No.1689) Regulation 1(2), paragraph 5A in Part I of Schedule 1, and paragraph 10 in Schedule 3

There is no statutory definition of the word 鈥渟alary鈥�. Remuneration does, however, have to have the following characteristics if it is to be regarded as 鈥渟alary鈥�:

• it is paid for services rendered or to be rendered
• it is paid under some contract or appointment
• it is computed by reference to time worked
• it is payable at a specified time or at specified intervals
• it is paid for regular work.

It should also be borne in mind that, although a payment may have some other description such as a fee, its proper description may be salary.

The above statements are based on the following case law.

Re Shine, ex parte Shine [1892, 1QB522]

Mr Shine was a comedian who was declared bankrupt. He was engaged under a two-year contract, which provided for payment of so much per week to cover six performances, with an extra, fixed payment for a seventh performance. For the purposes of the Bankruptcy Act 1883, it was necessary to establish whether Shine鈥檚 remuneration was a salary. The Court of Appeal held that it was. In his judgment Lord Justice Fry said

鈥淲henever a sum of money has these four characteristics - first, that it is paid for services rendered; secondly, that it is paid under some contract or appointment; thirdly, that it is computed by time; and fourthly, that it is payable at a fixed time - I am inclined to think that it is a salary鈥︹��

Greater London Council v Minister of Social Security [1971, 2All ER285]

More recently, the High Court had to consider whether Mr Freeman, a dentist engaged by the GLC to work six three-hour sessions per week for an indefinite period, was remunerated by salary for the purposes of the National Insurance (Classification) Regulations 1948 (a predecessor of the above Regulations). He was paid monthly at a rate calculated at an amount per session. Judge MacKenna, finding that the dentist鈥檚 remuneration was a 鈥渟alary鈥� within the meaning of the Regulations, commented

鈥淭he word 鈥渟alary鈥� is not defined in the regulations or in the Acts. The definition in the Oxford English dictionary is in these terms

鈥淔ixed payment made periodically to a person as compensation for regular work - now usually restricted to payments made for non-manual or non-mechanical work (as opposed to wages).鈥�

He also made two other relevant comments in his judgment. The first emphasises that what matters is the substance of the arrangement and not necessarily the description used by the parties

鈥淭hus, Mr Freedman鈥檚 payments fulfilled all the requirements of the definition which I would use in construing the regulations. I would for that reason hold that he was paid a salary. I do not overlook the circumstance that, in the letter [of engagement] which I have quoted, the word 鈥渇ee鈥� is used and not 鈥渟alary鈥�. It has often been said in other cases, under these Acts, that the word used by the parties does not govern the court. The cases must be decided according to the substance of the matter. Here the substance is, in my opinion, salary and not fees.鈥�

Secondly, commenting on Lord Justice Fry鈥檚 four characteristics, he said

鈥淲here, as here, the unit of time is a short period of three hours actually worked, there must, I think, be added to Fry LJ鈥檚 four characteristics, a fifth, that the contract should provide for the recurrence of the sessions of work throughout the contract period, whether that period is fixed or indefinite. A salary is, as the dictionary definition states, a payment made for 鈥渞egular work鈥�. If the contract provided only for a single session of three hours鈥� work, the payment, though computed with reference to time, would not be described a 鈥渟alary鈥�. It would be more aptly described as a 鈥渇ee鈥�.