Records, Evidence, Powers & Offences: Evidence; reverse burden of proof
The legislation that applies to this page is as follows:
* National Minimum Wage Act 1998, section 28
It is the responsibility of employers to retain sufficient information (NMWM12140) to demonstrate that they are paying their workers at least the national minimum wage. Where a worker takes legal action in the civil court against their employer for not being paid at least national minimum wage the court, under section 28, will place the onus on the employer to provide their evidence to the contrary.
Position of HM Revenue & Customs
When NMW Officers take enforcement action against employers for not paying workers at least the national minimum wage they issue a notice of underpayment (NMWM13030). An employer can appeal against a notice of underpayment to the Employment Tribunal or, in Northern Ireland, the Industrial Tribunal under section 19C.
Where a Tribunal allows an appeal to proceed, the Employment Judge will consider and weigh up the evidence from both the appellant (the employer) and respondent (HM Revenue & Customs). The onus to prove their case falls equally on both parties; there is no inbuilt reverse burden of proof on the employer to prove that a notice is incorrect in the first instance and both parties will be required to present their respective positions to the court. (As NMW Officers undertake impartial investigations (NMWM12150), obtaining evidence from employers and workers, it is likely that most, if not all, of the evidence will be produced at a tribunal.)
When making presentations in court, HM Revenue & Customs (NMWM02030) will be obliged to present evidence that the notice was correctly served, that the details on the notice are correct and that the penalty is due as shown on the notice. In the highly unlikely event that a court considers that a NMW Officer has insufficient evidence to support a notice of underpayment the expectation is that such a notice will be rescinded.