Records, Evidence, Powers & Offences: Records; records to be made available to workers
The legislation that applies to this page is as follows:
* National Minimum Wage Act 1998, sections 10 & 11
Employers are legally required to keep sufficient records to show that they are meeting their national minimum wage obligations and paying their workers at least national minimum wage (NMWM12020).
If a worker has reasonable grounds to think that they are being, or have been, paid less than the national minimum wage they have the right to require the employer to produce any relevant records and inspect and examine those records and copy any part of them.
These rights can be exercised by the worker giving the employer a “production notice” requesting the production of any relevant records relating to specified pay reference period[s]. The notice must also indicate whether the worker alone will be looking at the provided records or whether they will be accompanied by someone they think fit.
On receiving a production notice the employer will give the worker reasonable notice of a place and time where the records will be provided which must be either
- At the worker’s place of work,
- A place which is reasonable for the worker to attend, or
- A place agreed between the worker and employer.
Unless the worker and employer agree otherwise, the employer must produce the records to the worker before the end of 14 days following the date of receipt of the production notice.
If an employer fails:
- to produce some or all of the relevant records; or
- to allow the worker to inspect and examine relevant records; or
- to allow the worker to be accompanied by a person as the worker may think fit
the worker may present a complaint to an Employment Tribunal or, in Northern Ireland, the Industrial Tribunal. Where the Tribunal finds such a complaint well-founded, it will make an award for the employer to pay the worker a sum equal to 80 times the hourly amount of national minimum wage in force at the time of the award.
There are time limits for workers to present such cases to a Tribunal. A case can only be considered if it is presented:
- within 3 months following the end of the period of 14 days following receipt of the production notice; or
- within 3 months of any later date agreed between the worker and employer for the production of records; or
- if it is not reasonably practicable to present the case within the required 3 months, within such further time as the Tribunal considers reasonable.
HM Revenue and Customs cannot advise a worker whether they should pursue such a case. If a NMW Officer is approached by a worker it should be made clear that the worker should seek their own legal advice. From 29 July 2013 fees have been introduced to take a case to an Employment Tribunal. If the worker queries the cost of fees or whether the fees can be remitted the NMW Officer should suggest that the worker may wish to seek assistance from the Tribunal or Citizens Advice Bureau.