Records, Evidence, Powers & Offences: Offences; criminal offences for national minimum wage
The legislation that applies to this page is as follows:
* National Minimum Wage Act 1998, section 31
It is recognised that the civil powers contained in the 1998 Act will be sufficient in the great majority of cases. However, for the small minority of employers that are persistently non-compliant and refuse to cooperate with a NMW Officer, criminal investigation may be appropriate.
There are six criminal offences for national minimum wage;
- Section 31(1): refusing or wilfully neglecting to pay at least equal to the national minimum wage;
- Section 31(2): failing to keep or preserve national minimum wage records;
- Section 31(3): making, knowingly causing or allowing the keeping of false records;
- Section 31(4): producing, furnishing or knowingly causing or allowing the production of false records or information;
- Section 31(5)(a): intentionally delaying or obstructing a NMW Officer;
- Section 31(5)(b): refusing or neglecting to answer any questions, give information or produce any documents to an enforcement officer when required
The policy intention (NMWM12260) is for these criminal offences to support the underlying mechanisms for enforcement of the national minimum wage by ensuring that payment of the national minimum wage and the role of the NMW Officer are taken seriously. An employer who commits any of the above offences is liable to criminal prosecution and as such may be liable to a fine.
Up to 5 April 1999, criminal offences (under section 31 of the National Minimum Wage Act 1998) could only be tried in a Magistrates’ Court (Sheriff Court in Scotland). This meant the maximum fine that could be imposed on conviction was £5,000.
From 6 April 2009, the most serious cases can also be tried as criminal offences in the Crown Court (High Court in Scotland), where an unlimited fine can be imposed on conviction. In addition, these courts can order the disqualification of a director. This also means that the confiscation provisions of the Proceeds of Crime Act 2002 now also apply because the offences are “triable either way” in these courts.