Records, Evidence, Powers & Offences: Introduction
During the course of a national minimum wage investigation, the aim of a NMW Officer is to gather sufficient evidence to enable them to:
- Identify people who are workers for national minimum wage purposes (NMWM04000) and determine who is their employer;
- Identify those workers who should be paid at least national minimum wage (NMWM05000 and NMWM06000);
- Identify those workers who do not qualify for the national minimum wage (NMWM05000 and NMWM06000);
- Identify the type of work being performed for NMW purposes (NMWM07000);
- Identify the pay which counts for national minimum wage (NMWM09000, NMWM10000 and NMWM11000);
- Identify the time to be paid for national minimum wage purposes and the actual hours worked (NMWM08000);
- Form a view regarding whether workers have been paid at least NMW.
The NMW Officer’s opinions regarding a. to g. above will become the official view of HM Revenue & Customs (NMWM02030). This view will not necessarily agree with the position being presented by either the employer or worker. It is important to remember that whilst HM Revenue & Customs uses complaints as a source for investigation, it is not its role to merely represent a complaint and/or the views of a worker. A NMW Officer is expected to reach their own, impartial view (NMWM12150). If workers wish to pursue their own view of arrangements or legislation they can take their own legal action should they choose, but if they do so HM Revenue & Customs cannot also take action on their behalf (NMWM13020).
The evidence obtained will vary from investigation to investigation but is likely to involve information gathered from employers and workers as well as consideration of employer records (NMWM12060) and information from relevant third parties, such as service users, training providers, etc.
Where evidence is contradictory, inconsistent or lacking it is likely that the NMW Officer will need to test, challenge and seek corroboration of the information being provided in order to form a fully considered view (NMWM12150) using their best judgment (NMWM12170) where appropriate.
If there is insufficient evidence available for a NMW Officer to form a view regarding whether an employer has paid a worker at least national minimum wage then it will not be appropriate to consider any enforcement action, for example;
- there may be insufficient evidence that a person is a worker for national minimum wage purposes because they are self-employed or a volunteer, or
- it is not possible to issue a notice of underpayment (NMWM13030) where an employer has not been correctly identified.
NMW Officers have legal powers (NMWM12210) to enable them to conduct investigations and there are a range of criminal offences (NMWM12250) which can be used to ensure that the payment of national minimum wage and the role of the NMW Officer are taken seriously.