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HMRC internal manual

National Minimum Wage Manual

From
HM Revenue & Customs
Updated
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Issuing notices of underpayment: when not to issue a notice

General

Notices of underpayment will normally be issued (NMWM13030) whenever HM Revenue & Customs investigate and find arrears of national minimum wage owed by an employer to one or more of their workers on the date of contact at the start of an investigation. However, in some limited circumstances a notice may not be appropriate as follows:

All arrears paid before the start of an investigation

A notice of underpayment will not be appropriate when an employer paid workers below the applicable national minimum wage rates, but has correctly repaid all the arrears owing to the workers before the date of contact.

All arrears paid and all for periods prior to 6 April 2009

A notice of underpayment will not be issued if HM Revenue & Customs find arrears outstanding on the date of contact and:

  • the workers have been paid all their identified arrears in full during the course of the investigation, and 
  • the arrears are all for pay reference periods starting before 6 April 2009.

In these circumstances an appropriate closure letter should be issued to the employer.

Employer is insolvent (or is about to be declared insolvent)

A business remains liable to pay national minimum wage arrears and any penalty even when insolvent. The term “insolvency” is generally used to refer to:

  • the formal processes of bankruptcies, sequestrations, company liquidations, receiverships and administrative receiverships, and
  • although not formally insolvent, to administrations (for companies, partnerships and individuals), Trusts and voluntary arrangements (for companies, partnerships and individuals).

Whether or not a notice of underpayment is issued in these circumstances depends on the stage the insolvency proceedings have reached. (This content has been withheld because of exemptions in the Freedom of Information Act 2000)

Cases involving exceptional circumstances

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