Records, Evidence, Powers & Offences: Evidence; gathering information from employers
The legislation that applies to this page is as follows:
* National Minimum Wage Act 1998, section 14
NMW Officers have legal powers (NMWM12210) to enable them to investigate and enforce national minimum wage. When investigating compliance with national minimum wage legislation a NMW Officer will require information from employers.
As well as considering relevant records (NMWM12020) a NMW Officer will wish to speak to the employer in order to;
- better understand the background and operation of the business,
- assess areas of risk regarding potential non-compliance,
- identify exemptions from national minimum wage.
The employer will be able to:
- clarify where needed information in the business records,
- provide explanations where information is confusing or missing
- introduce the NMW Officer to people who are relevant to the investigation.
Most employers will be helpful and seek to demonstrate that they are paying workers at least the national minimum wage. Where a NMW Officer identifies an issue which results in less than national minimum wage being paid it may be necessary to educate the employer to avoid further difficulties.
Whenever a NMW Officer is taking up the time of the employer it is appropriate to resolve as much as possible at the same time. For example;
- if a NMW Officer identifies that deductions are causing workers to be paid less than national minimum wage it is appropriate to obtain details of the workers involved and the occasions of the deductions at the point of discovery rather than leave the information to be obtained later.
- if a NMW Officer is discussing with an employer a status issue of a potential worker (NMWM04000) it will also be appropriate to obtain sufficient information to determine the worker’s hourly rate for national minimum wage purposes, rather than resolve a single aspect and have to further disturb the employer.
- where a NMW Officer identifies that a worker has been paid less than national minimum wage and an employer agrees to calculate and pay arrears, sufficient information should be obtained in order for the appropriate notice of underpayment (NMWM13030) to be issued in a timely fashion without further recourse to the employer rather than rely on potential delays being introduced by a well-meaning but ultimately busy employer.
- where a NMW Officer is discussing arrears and the employer advises of several business changes, changes of ownership, changes of office holders, or changes in partnership it is appropriate to obtain details and dates of such changes when first notified (NMWM12070) rather than wait to resolve issues at a later time, such as when preparing a notice of underpayment (NMWM13030).
When a NMW Officer is discussing matters with an employer it is essential that they make notes of:
- to whom they are speaking
- their position in the business
- how long they have held that position.
The NMW Officer should also consider who is the best person in the company to speak to in order to obtain the necessary information Where significant information has been obtained it is useful to provide employers with copies of the notes of reported conversations for their consideration and agreement. Such records will form part of an evidence bundle in cases of litigation.
(This content has been withheld because of exemptions in the Freedom of Information Act 2000) NMWM12210(This content has been withheld because of exemptions in the Freedom of Information Act 2000) NMWM02030(This content has been withheld because of exemptions in the Freedom of Information Act 2000)