Records, Evidence, Powers & Offences: Evidence; reaching an impartial view
All investigations undertaken by HM Revenue & Customs (NMWM02030) must be undertaken in an impartial manner. Even though some national minimum wage investigations may originate from a complaint made against an employer the investigation itself must not place any additional weight on such allegations and ensure that information provided by both workers and employers is fairly considered “in the round”.
When undertaking investigations a NMW Officer is obtaining and considering evidence in order to form their own view, as an appointed officer of the Secretary of State, and HM Revenue & Customs will not side with any party subject to the investigation.
When HM Revenue & Customs initiates enforcement action against an employer it is the view of the NMW Officer which is presented to the courts and not the view of a complainant or worker. A worker may provide witness testimony which has contributed to the view of the NMW Officer but the decision to undertake and defend legal action will fall to HM Revenue & Customs.
Worker disagrees with the NMW Officer’s view
If a worker disagrees with a view being formed by a NMW Officer regarding their national minimum wage position they can request to withdraw themselves from an investigation at any point prior to the commencement of enforcement action (NMWM13020). Investigations undertaken by HM Revenue & Customs will not impose the view of a NMW Officer upon a worker; neither must a NMW Officer blindly adopt the views of the worker.
Worker undertakes their own legal action
Workers are able to undertake their own legal action against their employer where they feel they have not been paid at least national minimum wage. Where they take such action this will be a matter for themselves and potentially any legal adviser to consider - a NMW Officer will not routinely be a party to such proceedings as the worker will be representing their own views rather than those of HM Revenue & Customs. A NMW Officer will only participate in such cases where they are ordered by a tribunal or court to appear as a witness (NMWM22310).
HM Revenue and Customs cannot advise a worker whether such action should be taken. 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.
It should be noted that where a worker has taken legal action against their employer or entered into some form of negotiated settlement agreement (formerly known as compromise agreement) (NMWM05380) HM Revenue & Customs will be unable to initiate additional enforcement action on their behalf. The same principle also applies to workers who are likely to encounter difficulties should they attempt to take additional enforcement action for arrears which have already been subject to enforcement action by HM Revenue & Customs.