NMWM12140 - Records, evidence, powers and offences: evidence: gathering sufficient evidence
General
It is important that a NMW Officer avoids forming any view regarding compliance before sufficient evidence has been obtained. Where there is insufficient evidence, it is likely that the investigation will have unresolved contradictions which could undermine enforcement action.
If a NMW Officer does form a view that a worker has not been paid at least the National Minimum Wage they must ensure that they have sufficient evidence to support that view.
What is sufficient evidence?
NMWM12050 gives guidance on what is evidence. There is no specific definition as to what constitutes sufficient evidence when determining an employer’s compliance with National Minimum Wage legislation. A NMW Officer needs to use their judgement regarding the relevance and weight of the information they have obtained. The information provided is unlikely to be simply restricted to written records and can include statements from relevant parties, web pages, photographs, advertisements, etc.
When checking that sufficient evidence has been obtained it is important that the NMW Officer ensures that they have obtained enough information to have a thorough understanding of the arrangements being considered. For example, if the point of contention is whether a worker was entitled to the apprenticeship rate of National Minimum Wage or not and there is no supporting written contracts, then it may be necessary to consider precisely what the worker was doing each day. This information will enable the NMW Officer to form a view regarding whether the arrangement was primarily a learning/training arrangement or whether they were simply performing work.
When considering evidence, it can be helpful where information can be corroborated by other witnesses. Therefore part of the gathering sufficient evidence may involve checking information with other witnesses. For example, where it is reported that 4 people are working in a shop for 20 hours a week but one worker reports that they are working 40 hours then it would be reasonable to expect a NMW Officer to check the views of the other 3 workers regarding the time worked as part of gathering sufficient evidence.
Where a NMW Officer is in a position where they are unable to form a view, this may indicate that they have yet to obtain sufficient evidence during the investigation. In such circumstances it may be helpful to discuss the case with a colleague, People Leader or the Operation Advisory Team who may make suggestions regarding what further evidence might be helpful. Where:
- further evidence cannot be obtained; or
- it is considered inappropriate to try and obtain further information
- it might be a case for a NMW Officer to apply their best judgment (NMWM12170) on the information they have obtained.