3. Employers and the minimum wage

Employer checks

It’s a criminal offence for employers not to pay someone the National Minimum Wage or to falsify payment records.

Employers who discover they’ve paid a worker below the minimum wage must pay any arrears immediately. Use the National Minimum Wage calculator to work out arrears.

HM Revenue and Customs (HMRC) officers have the right to carry out checks at any time and ask to see payment records. They can also investigate employers, following a worker’s complaint to them.

If HMRC finds that an employer hasn’t been paying the correct rates, any arrears have to be paid back immediately. There will also be a penalty and offenders might be named by the government.

It’s the employer’s responsibility to keep records proving that they are paying the minimum wage - most employers use their payroll records as proof. All records have to be kept for 3 years.

Pay reference periods

Pay reference periods are usually set by how often someone is paid, eg 1 week, 1 month or 10 days. A pay reference period can’t be longer than 31 days.

A worker must be paid the minimum wage, on average, for the time worked in the pay reference period.

The minimum wage is calculated differently for some types of worker.

What’s not included in minimum wage calculations

Some payments made by workers must not be included when the minimum wage is calculated.

These are:

  • payments that shouldn’t be included for the employer’s own use or benefit, eg if the employer has paid for travel to work
  • things the worker bought for the job and isn’t refunded for, eg tools, uniform, safety equipment

What’s included in minimum wage calculations

Some payments must be included when the minimum wage is calculated.

These are:

  • Income Tax and National Insurance contributions
  • wage advances or loans
  • repayment of wage advances or loans
  • repayment of overpaid wages
  • things the worker paid for that are not needed for the job or paid for voluntarily (eg meals)
  • accommodation provided by an employer above the offset rate (£4.91 a day or £34.37 a week)
  • penalty charges for a worker’s misconduct

Example

John is 27 and works 40 hours a week. He earns £6.35 per hour or £254 a week.

He pays £15 a week to rent his uniform and the money isn’t refunded. He also chooses to eat in the canteen, and pays £20 per week for his meals.

To calculate his minimum wage, John’s employer must deduct the uniform rental from the pay but not the money paid for meals.

This means John makes £239 per week (£254 minus £15) which is £5.98 per hour. This is below the minimum wage rate of £6.31.

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