Issuing notices of underpayment: general format of a notice & its accompanying correspondence
The legislation that applies to this page is as follows:
- National Minimum Wage Act, sections 19 & 19A
Notice of underpayment
A notice of underpayment explains what an employer is liable to pay, including:
- the total arrears payable for all workers named on the notice, and
- any penalty payable to HM Revenue & Customs, how it has been calculated, the reduction for prompt payment and whether it has been suspended.
The notice is issued by an officer in the National Minimum Wage Compliance Team (NMWM13050). It informs the employer that, in the opinion of that officer, national minimum wage arrears are due and the amount of those arrears. It tells the employer to pay any outstanding arrears and any penalty within 28 calendar days of the date of service of the notice (counting the date of service as day 1) (NMWM13290). If a penalty is included on the notice (NMWM13180) the employer is advised that if they pay all the worker’s arrears and 50% of the penalty within 14 calendar days of the date of service of the notice (counting the date of service as day 1), then the penalty will be regarded as paid (NMWM13230).
The notice explains that the employer has a right of appeal to an employment tribunal (NMWM02100) (an industrial tribunal in Northern Ireland) (NMWM02110). The deadline to lodge an appeal with the tribunal is 28 calendar days from the date of service of the notice (counting the date of service as day 1).
It also informs the employer that HM Revenue & Customs may take legal proceedings against them if the amounts on the notice are not paid in full, and that it is a criminal offence to refuse or wilfully neglect to pay a worker national minimum wage when it is due.
A schedule is issued with every notice of underpayment. For each worker named on the notice, the schedule includes:
- the name, pseudonym or description of that worker; (NMWM13130)
- the age or date of birth of the worker;
- the relevant day for that worker; (NMWM13150)
- the pay reference periods underpaid; (NMWM13160)
- the total arrears for the worker; (NMWM13160)
- any amounts paid to the worker on or after the date of contact;
- the balance of arrears outstanding for that worker.
The guidance note is issued with every notice and contains general information about the notice of underpayment, the penalty charge and national minimum wage enforcement.
If a penalty is included on the notice of underpayment, a penalty payslip is included with the notice. The penalty is payable to HM Revenue & Customs (NMWM13240).
Appeal leaflet & explanatory notes
A relevant appeal leaflet and explanatory notes are issued with every notice.
In some circumstances, an appropriate covering letter is issued with the notice of underpayment (NMWM13260).