After notice of underpayment issued: withdrawing a notice of underpayment and not replacing it
The legislation that applies to this page is as follows:
* National Minimum Wage Act 1998, sections 19F, 19G & 19H
Where a Notice of Underpayment has been served the notice can only be withdrawn if it decided that it either
- incorrectly includes or omits any requirement, or
- is incorrect in any particular.
A Notice of Underpayment is withdrawn by serving a notice of withdrawal (Word 25kb) on the employer. A notice of withdrawal must be authorised by the FLM in the same manner as NMWM13270.
When compliance officers become aware that a notice needs to be replaced they should immediately notify their FLM. FLMs should discuss the case with their BUH and gain authorisation in writing before proceeding.
Once authorisation is obtained please see NMWM14230.
No payment made
If the employer has not paid any of the arrears or the penalty the NMW Officer should consider closing the case following withdrawal action.
Employer paid some or all arrears and penalty
Where a Notice of Underpayment is withdrawn and is not being replaced with a new notice, you must:
- confirm whether or not the employer has paid any of the arrears, or any of the penalty shown on the original notice.
- If there was a penalty shown on the notice, advise your Strategic Accounting Framework Environment (SAFE) Officer that the penalty is not now due.
If the employer has paid:
- some or all of the arrears to workers; inform your FLM, and/or
- some or all of the penalty; inform your FLM and advise your nominated SAFE Officer that the amount already paid towards the penalty must be repaid with interest (NMWM03090) within 14 days of the date of the notice of withdrawal (NMWM14070) in accordance with the National Minimum Wage Act. See also NMWM14250.
Employer has appealed
If the original notice is subject to a legal appeal at a tribunal or court you must contact the NMW Technical Team prior to withdrawing the notice. They will consider the possible legal consequences and contact the caseworker in the Solicitor’s Office who is handling the response to the appeal brought by the employer against the original notice. That caseworker will inform the relevant parties to the action. The employer will be invited to withdraw their appeal. If they do not, it will be automatically dismissed by the Tribunals Office. There are occasions where an employer will only formally withdraw his appeal once the issue of costs that may be awarded have been resolved. Solicitor’s Office deal with costs issues.
Where a Notice of Underpayment has been withdrawn and not replaced civil proceedings cannot be commenced. However, if the civil proceedings have already commenced and the employer has served a defence, the civil proceedings may continue despite the withdrawal of the notice. It is unlikely that HM Revenue & Customs will want to continue under these circumstances but the employer may wish to continue with his defence for example in order to be awarded costs. If a case has been submitted for civil proceedings and you are considering withdrawing the original notice you should immediately contact the Operational Advisory Team.