Unauthorised absence pay deduction clause

You should ensure you reserve the right not to pay an employee for any period of unauthorised absence, which you can do with our clause.

Unauthorised deductions

Subject to certain exceptions, e.g. income tax and National Insurance deductions, under the Employment Rights Act 1996 no deduction may be made from an employee’s wages unless it’s either authorised by a relevant provision in their employment contract or they’ve given their written consent in advance to the deduction being made. If the employee makes an employment tribunal claim for an unauthorised deduction from wages and they’re successful, you’ll not only be liable to repay the amount of the deduction made but also you’ll be unable to recover that amount by any other means and you could additionally be required to compensate them for any financial loss they suffered as a result, such as bank charges. If, however, you don’t pay an employee for any day of unauthorised absence, does that actually constitute a wage deduction?

Unauthorised absence

Arguably, if the employee has failed to work on any day due to their being absent without permission, then no wages are properly due or payable to them for that day. If no wages are actually due in the first place, then non-payment of the employee’s wages for that day would not amount to an unauthorised deduction. However, to avoid any arguments as to whether withholding pay in these circumstances amounts to a deduction from wages or not, we’ve drafted our Unauthorised Absence Pay Deduction Clause. It sets out what constitutes unauthorised absence and then goes on to provide that you’re entitled to deduct, from any payment of the employee’s wages which you’re due to make to them, a day’s pay for each day of unauthorised absence. It also states that if the employee has already been paid for the particular day of absence, you’re entitled to deduct the overpaid sum from the following week’s/month’s wage payment, and it provides the employee’s express consent to any such deductions. That way, we’ve ensured compliance with the statutory provisions, whether or not this is actually needed.