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HMRC internal manual

National Minimum Wage Manual

HM Revenue & Customs
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Enforcement & Proceedings: Approach taken to defend an appeal at an employment tribunal (in Northern Ireland, an industrial tribunal)



The approach taken to defend a notice of underpayment involves the close working of three parties;

  1. NMW Technical Team,
  2. Solicitors, and
  3. The NMW Officer who issued the notice (and perhaps their People Leader).

NMW Technical Team

The NMW Technical Team consider the employer’s grounds of appeal and undertake a thorough review of the investigation papers in order to be able to instruct the relevant solicitor (NMWM15040) to defend the arrears contained on the notice of underpayment.

The review will focus on whether the evidence (NMWM12050) obtained during the investigation supports the view of the NMW Officer and whether that view is based on the correct application of the legislation.

When preparing the instructions, the NMW Technical Team will comment on the merits of the points raised by the employer in their grounds of appeal and make suggestions regarding how those points may be addressed and what further information may need to be provided. If the NMW Technical Team, in consultation with the solicitor, is of the view that the employer’s appeal should not be allowed to proceed, for example it has been submitted outside of prescribed time limits, they will instruct the solicitor to apply for it to be struck out by the tribunal.

(This content has been withheld because of exemptions in the Freedom of Information Act 2000)

(This content has been withheld because of exemptions in the Freedom of Information Act 2000)  


The solicitor instructed to defend the appeal will be responsible for all case management matters regarding that appeal. This will involve responding as needed to the tribunal and appellant, preparing bundles, liaising with the NMW Officer concerning the production of witness statements and availability of witnesses, ensuring that the Department has appropriate legal representation at the hearing and the consideration of any costs.

All legal aspects of the case, including liaising with the appellant and tribunal, will be managed by the solicitor. Where a solicitor feels that there is an obstacle to them acting in accordance with their instructions they will liaise with the NMW Technical Team to explore a resolution or seek new instructions. In such circumstances the NMW Technical Team will liaise with the NMW Officer and People Leader as required.

NMW Officer

The NMW Officer who issued the notice being appealed will be a key witness at the tribunal. The NMW Officer will be responsible for providing the support and evidence for the solicitor, including the provision of a witness statement. (This content has been withheld because of exemptions in the Freedom of Information Act 2000)

(This content has been withheld because of exemptions in the Freedom of Information Act 2000)

The NMW Officer will also be responsible for liaising with those workers who will be supporting witnesses at the hearing, checking their availability and assisting with the production of their witness statements.


The tribunal will dictate the timescales for handling appeals, notifying the appellant and respondent respectively of the timeframe for the various aspects for the case, such as deadlines for submissions and hearing dates. These timeframes can be extremely variable. Some courts will find a slot for a hearing date in as little as two weeks whilst others can take several months.

Failure to comply with deadlines set by the tribunal will severely compromise the ability to successfully defend a notice. Therefore it is essential that all action relating to tribunal is given priority attention and the NMW Officer and the NMW Technical Team adhere strictly to all requests concerning case management issues.