Salary Sacrifice(pension contributions) and NMW

For 6 years I have been paying into a pension scheme. The employer took all this time the contributions before tax. However, since June 2023 the contributions have been taken after tax. The explanation from the employer was that they have to do this because otherwise I come below the National Minimum Wage. At least the 2 previous pay periods where the pay was almost exactly the same the contributions were taken before tax. I raised this that before I was being paid below the National Minimum Wage but there is a response that all was correct and not been paid below the National Minimum Wage. So I would like to know if I was paid below the National Minium Wage.

 Hi Richard, 
 NMW does not recognise a difference between Gross and Net pay.
Any deduction from pay, outside of a very specific list of exceptions, is likely to reduce a worker’s pay for minimum wage purposes.
Where a genuine salary sacrifice scheme is in place, the worker no longer has entitlement to that amount of pay under their contract.
As this amount is ‘sacrificed’ by the worker, it reduces their pay and so cannot be used as part of their NMW pay.

If you believe that you have not been paid at least the National Minimum Wage, you can make a complaint to HMRC by visiting
National Minimum Wage enquiries and complaints,
Or by contacting ACAS on 0300 123 1100.
Thank you. 
 

Good Afternoon
I have just attended an HMRC webinar on NMW and salary sacrifice.
I am still uncertain as to how making pension contributions via salary sacrifice affects NMW. If an employee elected to sacrifice all of their salary for a pension contribution, and that salary was within the annual allowance then under pension rules they could do this and receive tax relief on the entire contribution.
In such a case their contractual salary is unchanged the substance of the transaction is that their salary has just been diverted (sacrifice is really a misnomer). That person is the beneficiary of their pension account, and entitled to that pay, in the same way that they are a beneficiary of their bank account. There is the same entitlement to that money, they are just different pots.
In which case there is no reduction in wage, the wage has been received in full, it has just been paid differently, i.e. diverted rather than sacrificed - the wage has not been given up.

Hi Hutton
NMW relates to the salary not the pension, so giving up all rights to salary would mean a new contract salary of 0.00 this is below the NMW.
It would not matter if it was paid into their pension as this would not be classed as salary.
Thank you