You have four levers: interest, suspension, adjudication and, after a long wait, termination. Being a subcontractor not paid doesn't leave you waiting on the Client's money, because the Construction Act generally stops payment being made conditional on the main contractor being paid, with a narrow exception for upstream insolvency.
What decides your route is whether there's a notified sum that's still unchallenged. The periods here are from the unamended NEC4 Engineering and Construction Subcontract (ECS), with Option Y(UK)2. Your Subcontract Data can change them, and if the Construction Act applies to your work, its rights apply however the subcontract is written.
What to do now
- Find the dates. Under the ECS, the Contractor certifies within two weeks of the assessment date. With Y(UK)2, the sum falls due 14 days after the assessment date, and the final date for payment is 14 days after that, unless the Subcontract Data says otherwise.
- Find the notified sum. The Contractor's certificate is the payment notice.
- Look for a pay less notice. It has to arrive at least seven days before the final date, stating the amount considered due and how it was worked out (Y2.3). See pay less notices.
- Write the day after the final date. Ask for payment, and state the sum and the dates.
- Decide about suspending. The Act requires at least seven days' notice, stating what's unpaid and why you intend to suspend.
- Give an adjudication notice if you still aren't paid, or if the amount itself is disputed. Under W2, you can start at any time.
Which route fits your situation
| Situation | Position | Best first move |
|---|---|---|
| Certified, no pay less notice, unpaid | The notified sum is due. Interest runs under 51.2 | Demand, then suspension notice or adjudication |
| Valid pay less notice | Only the lower sum is payable for now. You can dispute the valuation | Adjudicate the valuation if the gap is worth it |
| No certificate at all | Interest still applies to a payment that's late for that reason (51.2). Whether you have a notified sum needs checking: see Option Y(UK)2 | Written reminder, then adjudicate |
| "The Client hasn't paid us" | Generally no defence: see pay when paid | Treat it as ordinary late payment |
| Main contractor or Client insolvent | Different rules apply. Take advice before doing anything else | Stop extending credit if you can; get advice |
The last resort: termination
Reason R16 lets a Subcontractor terminate if an amount due is left unpaid for 13 weeks after it should have been paid, under the NEC4 ECS (11 weeks in the NEC3 ECS). You notify the Contractor with the reason, and it should issue a termination certificate. You then leave the Working Areas, and the amount due includes the items in A1, A2 and A4, one of which is a fee percentage on the unearned balance. See ending an NEC subcontract. Take advice first: a mistake about whether the sum is really "due" could leave you as the party in breach.
Suspension: the contract and the practice
The contract says suspending under the Act is a compensation event under Y(UK)2, so your time and cost can be assessed. Notify that event within your seven weeks. In practice, suspension is a strong step on a live site: make sure the sum is due, that your notice meets the Act, and that you can make the work safe when you leave. Early warn too, as it may delay Completion.
Sample payment letter
"Payment certificate [no.] dated [date] notified £[x]. The final date for payment was [date]. We received no notice of intention to pay less. If payment isn't received by [date], we will give notice of our intention to suspend performance under the Construction Act, and refer the sum to adjudication. Interest under clause 51.2 is accruing."
What the Contractor will probably say
Common answers are that the Client hasn't paid yet, that a set-off applies, that defects justify withholding, or that a pay less notice went out. Check each against the dates. A set-off or defect claim generally needs a valid pay less notice to reduce the notified sum, though it may still be raised as a separate dispute. Going directly to the Client isn't a contract remedy, unless you're on a project bank account or similar arrangement. See also subcontractor payment and the NEC questions hub.
Related guides
- NEC Questions Answered: Real Situations on Site
- Should a Subcontractor Warn the Main Contractor or the PM?
- We Stopped Work for a Safety Reason: Who Pays?
- The PM Told Us to Stop Work: What Should We Do?
- Our Subcontractor Notified Late: Can We Still Claim Upstream?
- Our Subcontract Is Not on an NEC Form: Does It Matter?
See how this works in practice
Click through Contract Status with sample contracts: raise the notice, reply to it, and watch both sides of one record.
Take the guided tour Book a demo
Use the NEC deadline calculator, use the free NEC tools or download free NEC templates.
This guide is general information in our own words, not legal advice. Your contract and its Contract Data always govern. NEC, NEC3 and NEC4 are trade marks of Thomas Telford Ltd; Contract Status is not affiliated with or endorsed by NEC.