Salary sacrifice schemes and workwear policies among the practices unwittingly exposing employers to large penalties, according to Grant Thornton

Businesses are facing an increased risk of being exposed to heavy fines for unintentional national minimum wage (NMW) breaches, according to business advisors Grant Thornton UK LLP.

The advisory firm has witnessed a rise in the number of businesses being investigated for NMW offences, often as a result of commonplace practices such as salary sacrifice schemes and employee workwear policies inadvertently dragging employee pay under the NMW threshold.

The warning follows HM Revenue and Customs (HMRC) intensifying its focus on NMW breaches, which has included a 99% increase in its enforcement budget to £26.3 million since 2016 and growth in the number of dedicated NMW enforcement officers from 330 in 2017 to more than 450 today.

The government has also increased the potential penalties facing businesses found to have underpaid their employees, which have risen from 50% of the arrears owed to workers in 2014 to 200% of the underpayment today. In 2019-2020 this led to over £18.5 million in penalties being levied in over 3,300 closed investigations.

A number of recent high-profile cases have been brought against household name brands in a variety of market sectors including retail, hospitality and the sports industry. Currently 60% of NMW reviews originate from current workers, ex-workers or third parties making complaints to HMRC.

Phil Cavill,  National Minimum Wage specialist at Grant Thornton in the North West  said: “NMW compliance is under the microscope right now and due to the myriad of challenges facing businesses it’s inevitable that some finance teams – even those with the best of intentions – could be caught out.

“The government is encouraging at-risk workers to check their hourly rate of pay as well as any deductions or unpaid working time. A common way for employers to be unknowingly non-compliant is through employee benefits and salary sacrifices such as pension contributions. This is because they mean a reduction in base pay, and if it falls under NMW then it’s not legal.

“Situations like this are often where employers unknowingly slip up, as it’s not done to put the employee at a disadvantage but it’s still illegal – therefore either the pay has to increase or the employee taken out of the salary sacrifice scheme.

“Certain sectors can have specific issues that are more likely to cause a problem, for example in the retail and hospitality sectors with uniforms. If a uniform cost is met by the worker and the employee falls under NMW because of it then the employer could be penalised. In one case, a restaurant chain asked staff to wear black jeans or a skirt with a branded top and ended up having to repay an average of £50 to 2,630 employees.

“There are a lot of other issues that can arise as part of the average working day which could cause a NMW issue, such as time records not capturing all time actually worked, clocking in systems that round down, the smoothing of variable pay and failing to account for time taken to perform actions such as security checks, putting on PPE or undertaking training.”

With many businesses dealing with an increased workload and confusion due to the pandemic as well as now focusing on building back from the lockdowns, Grant Thornton says there could be significantly more that have failed to identify policies that breach NMW legislation.

In addition, there were several legislative changes in April that could have increased an employer’s liability if they were not accounted for. These include post-Brexit temporary transitional powers, the re-categorisation of workers and changes to salary premiums.

Michelle Perry added: “It’s vital that employers review their policies and ensure that they are compliant, as otherwise they risk being penalised. HMRC will not accept ignorance as an excuse and even if there was no intent to underpay workers they will still be charged.”