Enforcement & Proceedings: Employer submits appeal against a notice of underpayment
The legislation that applies to this page is as follows:
- National Minimum Wage Act 1998, sections 19(8) and 19C
An employer can appeal against a notice of underpayment issued by a NMW Officer to an employment tribunal (NMWM02100) (industrial tribunal in Northern Ireland (NMWM02110)). The appeal must be submitted within a “28-day period”. This period is defined by section 19 of the Act as the period of 28 days beginning with the date of service of the notice of underpayment.
From 29 July 2013 there is a fee in England, Wales and Scotland to make a claim and a further fee for the case to go to a final hearing (NMWM15070).
An appeal must be against any one or more of the following:
- The decision to serve the notice, i.e. they consider that no arrears are due for the workers as presented on the notice.
- Any requirement imposed by the notice to pay a sum to a worker, i.e. they consider that the arrears identified are incorrect for the workers as shown on the notice.
- Any requirement imposed by the notice to pay a financial penalty, i.e. they consider that either the penalty is incorrect or that a Secretary of State direction (NMWM13200) applies.
A tribunal will only allow an appeal to proceed when it is both within time and has sufficient grounds in which case it will notify both the employer (the appellant) and HM Revenue & Customs (NMWM02030) (the respondent) (NMWM15040).
Once the tribunal has allowed an appeal to proceed then HM Revenue & Customs will be tied to the legal process and the case will be heard at the tribunal unless the employer chooses to withdraw their appeal. This will be the case even if the NMW Officer changes their view due to some additional evidence and chooses to subsequently withdraw the notice of underpayment that is the subject of the appeal. This means that it is essential that any notice of underpayment is checked (NMWM13270) to ensure that both the employer and HM Revenue & Customs avoid incurring legal costs due to incorrectly issued notices.
If the tribunal wishes to explore some aspect(s) of the appeal or consider any case handling issues they may invite the respective parties to attend a case management discussion or a pre-hearing review (NMWM15050) prior to agreeing to proceed to a final tribunal hearing (NMWM15070).