Records, Evidence, Powers & Offences: Evidence; documenting the view of the NMW Officer
When a NMW Officer has formed a view it is appropriate to express and explain that view to the employer and worker(s). This gives the respective parties the opportunity to dispute, clarify or discuss the position. Where a NMW Officer proposes to issue a notice of underpayment, they must notify their views in writing prior to the notice being issued. The letter should include the NMW Officer’s view of:
- The type of work being performed for national minimum wage purposes.
- Whether the worker(s) qualify for national minimum wage and why.
- The reasons why the worker has not been paid at least national minimum wage.
- What evidence supports this reasoning, what evidence has not been preferred and why, and where evidence was not available an explanation of the judgements used. (NMWM12170)
- The extent of the underpayment.
The letter should give the employer the opportunity:
- to comment on the evidence used by the NMW Officer
- to raise objections
- to provide any further supporting evidence.
However, it would be reasonable for the NMW Officer to request that the employer responds within a specific timescale after which a notice of underpayment will be issued.
It is possible that the issue of an explanatory letter may result in further information being produced. Such information should be considered and, where necessary, checked and challenged to see if it changes the NMW Officer’s view.