Records, Evidence, Powers & Offences: Evidence; gathering information from workers
The legislation that applies to this page is as follows:
* National Minimum Wage Act 1998, section 14(1)(c),14(3) & 14(4)
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 is likely to require information from workers to check against the information provided by the employer.
Areas where information from the workers will be particularly relevant include;
- Confirmation of when the employment commenced and/or ended.
- Confirmation of time worked in each pay reference period; for example does the employer require the worker to attend work prior to their contractual times, such as before a shop opens?
- Confirmation of absences; the employer’s records may not correctly indicate times when the worker may have been absent from work, such as sickness, when attending medical appointments, annual leave and public holidays. A worker is only entitled to be paid at least national minimum wage for time worked so it is important that absences are excluded from an investigation.
- Confirmation of payments; the employer may have provided additional payments to workers outside of the payroll records, such as arrears of pay, expenses or cash in hand payment. Such payments should be considered for national minimum wage purposes, even where PAYE may not have been correctly operated.
- Details of any training provided. Time spent training is treated as time worked for national minimum wage purposes. The worker may have a more detailed knowledge of training time than the employer, such as times spent attending college or a training provider.
- Requirements imposed by the employer regarding uniforms and any other costs imposed on them or deductions made.
- Details of any time the worker may have spent travelling in connection with the employment.
- Is/was accommodation provided? (NMWM10020)
Whilst the responsibility for keeping records regarding national minimum wage rests firmly with the employer (NMWM12020), the worker may still have documents which will be helpful for a national minimum wage investigation. Examples of such records are:
- Correspondence relating to the employment, such as job advertisements, offers of employment and contracts
- Training agreements
- Certificates relating to training undertaken as part of the employment
- Bank statements confirming payments
- Copies of documents relating to loan agreements entered into with the employer
It is possible that a number of workers will be engaged under the same arrangements so it can be helpful to corroborate details of the employment by obtaining information from more than one worker. However, care should be taken to ensure that the information being provided is the view of individual workers and not an agreed collective view. In these circumstances it might be preferable to avoid obtaining information from groups of workers at the same time.