Employer Withholding Pay

By Andrew Willis
11 Sep 2020

“Can my employer withhold my pay?” is a common question made by employees. You may wonder yourself if you may do this. Especially after a difficult circumstance involving an employee.

From time to time, you may have an issue paying wages. If this is the case, what are the rights of your staff? What rights do you have when withholding payment? It is important to understand these, as any mistakes will lead to a breach of contract

Can an employer withhold wages in the UK?

Yes, there are some circumstances where employers withholding wages is legal. They are quite specific circumstances, however, and not normally allowing of deductions for anything related to performance or conduct.

The Employment Rights Act 1996 confirms that employees receive full payment of their wages. But statutory authorisation is an example where you can deduct/withhold wages lawfully. This is where you make reductions for National Insurance payments and income tax.

When can an employer withhold pay in UK Law?

Withholding wages laws in the UK allow for a certain set of circumstances where you can make deductions. These include:

  • When it’s required or allowed by law (National Insurance, income tax or student loan repayments etc.)
  • Agreements based on individual circumstances (provided it is legally compliant).
  • Written permission in the contract (provided it is legally compliant).
  • There’s a statutory payment for a public authority.
  • The employee/worker has not worked because of taking part in a strike or industrial action.
  • There’s been an earlier overpayment of wages or expenses.
  • The result of a court order.

A deduction cannot normally reduce your pay below the National Minimum Wage (NMW) even if you and the employee agree to it. The only times their pay can dip below NMW is:

  • From tax or national insurance.
  • Something the employee is liable for (a shortfall in a till).
  • Repayment of a loan or an advance of wages.
  • Repayment of accidental overpayment.
  • You provide the employee with accommodation.
  • For employee personal use (union subscriptions or pension contributions).

Final pay when leaving a job in the UK

Even when dismissing your employees without notice for gross misconduct, you still need to pay them under employment law.

It entitles an employee to full payment up to the last day of employment or the ‘effective date of termination.’

is the legal name for the date the employee’s dismissal takes effect. It is the last day on which you employ them under there. You should show this in the dismissal letter and the last date for payment.

You should make sure the person leaving understands the calculation of their final payment. For example, it should be clear in the payslip what each payment or deduction is for.

You may owe the employee additional payment to their base salary for the following factors:

Can an employer withhold pay for mistakes?

Deductions for job performance and mistakes, unless they have incentives based contracts, are unlawful.

Deductions should only usually occur in retail environments when there has been a shortfall in till calculations. As mentioned previously, if an employee is liable for something then you can make a deduction.

However, you can’t deduct the total amount. You can also only remove up to 10% of the gross pay per pay period until the amount gets paid back.

Can an employer withhold pay after termination in the UK?

If you end the employment of an employee, and he or she owes you money, you no longer have a contractual right to remove any money from the employee’s wage.

Withholding pay could lead to an unlawful deduction claim from your employee.

Can an employer withhold pay if staff quits without notice?

An employer withholding pay after quitting would normally count as wage theft in the UK. Employment law still entitles them to payment, just only pay for work they’ve done up to that point.

You may be able to make a court claim against them if you end up with extra costs due to them not working their notice. This doesn’t entitle you to withhold wages by law, you need to claim it back through the court.

Can an employer withhold holiday pay if staff quit without notice?

Even if an employee leaves without working their notice period, they’re still entitled to any money owed for untaken holiday leave. Refusing to do this will probably result in a tribunal.

This includes outstanding overtime, commission or bonuses and pension contributions up to the termination date. Uphold these factors regardless of an employee working their notice as they are in the terms of employment.

For extra support

Need more help with the complex topic of wage withholding? Get in touch with us today for expert advice: 0145 585 8132.

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in employment law, HR and commercial legal advice for small & large organisations across the United Kingdom.





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