In the first of a short series of pieces offering his perspective on and experiences of UK Employment Taxes and National Minimum Wage, Ian Thomas from People and Workforce at EY UK shares a salary sacrifice story.
When my colleague remarked that HMRC wanted to have their cake and eat it, I had a degree of sympathy for HMRC. What’s the point of having cake if you can’t eat it? But on this occasion, my colleague seemed to have a point.
The story goes like this – our client, who was under a National Minimum Wage (“NMW”) investigation, was told that their pension salary sacrifice arrangement reduced pay for NMW purposes. That seemed fair enough. They were also told that certain pay elements (bonuses and other allowances) did not count towards pay for NMW purposes. Again, fair do’s.
Here's where things started to appear unfair; the disallowable bonuses and allowances were pensionable which, as mentioned, was collected via salary sacrifice. However, rather than disallowing the sacrificed proportion attaching only to the salary, it was suggested that the entire sacrifice should be disallowed. “So, we’re not allowed to include the payment but we have to reduce the pay left by the sacrifice associated with it?...”
Pay for NMW purposes is what the employee is contractually entitled to, i.e. the post-sacrificed salary. Under a salary sacrifice, the employee agrees (contractually) to receive a lower amount of salary in return for a benefit - in our client’s case, additional employer pension contributions.
Therefore, the “payment” is the post-sacrificed salary, not the original higher salary. This is because the employee’s contractual entitlement is only to the lower amount - the amount sacrificed was never paid, the employee had no legal right to it and it should not, therefore, be taken into account for NMW purposes. Thankfully, after several meetings and further rounds of technically detailed correspondence, HMRC came round to our way of thinking but the interim was both a concerning and frustrating time for our client.
My advice – pay careful attention when mixing salary sacrifice with NMW!
Author: Ian Thomas
Ian is a partner in EY’s People Advisory Services team, specialising in UK Employment Taxes and National Minimum Wage. A former HMRC Inspector of Taxes and a member of the Chartered Institute of Tax, Ian has over 30 years’ experience advising clients on employment tax and NMW matters. He has supported numerous employers of all sizes with their HMRC investigations, negotiating significant reductions in settlements and saving his clients many £millions.
In the first of a short series of pieces offering his perspective on and experiences of UK Employment Taxes and National Minimum Wage, Ian Thomas from People and Workforce at EY UK shares a salary sacrifice story.
When my colleague remarked that HMRC wanted to have their cake and eat it, I had a degree of sympathy for HMRC. What’s the point of having cake if you can’t eat it? But on this occasion, my colleague seemed to have a point.
The story goes like this – our client, who was under a National Minimum Wage (“NMW”) investigation, was told that their pension salary sacrifice arrangement reduced pay for NMW purposes. That seemed fair enough. They were also told that certain pay elements (bonuses and other allowances) did not count towards pay for NMW purposes. Again, fair do’s.
Here's where things started to appear unfair; the disallowable bonuses and allowances were pensionable which, as mentioned, was collected via salary sacrifice. However, rather than disallowing the sacrificed proportion attaching only to the salary, it was suggested that the entire sacrifice should be disallowed. “So, we’re not allowed to include the payment but we have to reduce the pay left by the sacrifice associated with it?...”
Pay for NMW purposes is what the employee is contractually entitled to, i.e. the post-sacrificed salary. Under a salary sacrifice, the employee agrees (contractually) to receive a lower amount of salary in return for a benefit - in our client’s case, additional employer pension contributions.
Therefore, the “payment” is the post-sacrificed salary, not the original higher salary. This is because the employee’s contractual entitlement is only to the lower amount - the amount sacrificed was never paid, the employee had no legal right to it and it should not, therefore, be taken into account for NMW purposes. Thankfully, after several meetings and further rounds of technically detailed correspondence, HMRC came round to our way of thinking but the interim was both a concerning and frustrating time for our client.
My advice – pay careful attention when mixing salary sacrifice with NMW!
Author: Ian Thomas
Ian is a partner in EY’s People Advisory Services team, specialising in UK Employment Taxes and National Minimum Wage. A former HMRC Inspector of Taxes and a member of the Chartered Institute of Tax, Ian has over 30 years’ experience advising clients on employment tax and NMW matters. He has supported numerous employers of all sizes with their HMRC investigations, negotiating significant reductions in settlements and saving his clients many £millions.