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HMRC internal manual

National Minimum Wage Manual

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HM Revenue & Customs
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Enforcement & Proceedings: Action following a tribunal hearing

General

The majority of appeals against a notice of underpayment are unsuccessful and result in the employer having to pay arrears to workers.

Following a tribunal hearing the Employment Judge will issue a judgment. Where the judgment is in writing it will be copied and circulated between the NMW Officer, the solicitor and NMW Technical Team who will agree the next action depending on the result of the hearing.

The appeal is dismissed

If the employer is unsuccessful, the tribunal will dismiss the appeal and the employer will be expected to pay the arrears and penalty as described in the notice. (This content has been withheld because of exemptions in the Freedom of Information Act 2000)

After the hearing the solicitor engaged by HM Revenue & Customs will liaise with the employer to obtain their proposals to pay the arrears and penalty. This may involve the solicitor asking the investigating NMW Officer to check whether workers have been paid.

If the employer fails to pay the arrears owed to workers, the NMW Technical Team should be approached to prepare further instructions for legal action to obtain a civil judgment (decree in Scotland) (NMWM15100).

It is common practice for HM Revenue & Customs (NMWM02030) to issue a press release where appeals are successfully defended.

The notice is varied

If, as a result of the hearing the arrears are rectified (i.e. amended) by the tribunal, the employer may find themselves needing to pay a different amount to workers than originally described on the notice of underpayment. In these circumstances the court or solicitor may ask the investigating NMW Officer to prepare a revised schedule and penalty calculation to ensure that the revised arrears are correctly calculated. Sometimes this re-calculation will need to be done at the hearing.

The solicitor will liaise with the employer regarding the payment of the arrears and penalty. The notice of underpayment shall be treated as having been rectified from the date of the tribunal’s judgment from which the employer will have 14 days to pay half the penalty (NMWM14060). (This content has been withheld because of exemptions in the Freedom of Information Act 2000) NMWM13240(This content has been withheld because of exemptions in the Freedom of Information Act 2000)  

If the employer fails to pay the arrears owed to workers, the NMW Technical Team should be approached to prepare further instructions for legal action to obtain a civil judgment (decree in Scotland) (NMWM15100).

The notice is dismissed

If the employer is successful the tribunal will rescind (i.e. cancel) the notice. The employer will not be due to pay any arrears or the penalty described on the notice (This content has been withheld because of exemptions in the Freedom of Information Act 2000) .

Application for costs

Whichever side is successful at the tribunal may make an application for costs. Cost orders can be awarded by the Employment Tribunal, and since the introduction of fees, it is not unreasonable for a successful employer to seek at least the cost of the fees he has had to pay to appeal, any legal costs he has incurred and any expenses he has to pay his witnesses by way of costs. Where an employer is unsuccessful at a hearing then the solicitors acting for the Department will consider whether to apply for costs. We may apply for costs if the employer’s claim was particularly weak, should not have been brought before a tribunal or was conducted badly or unreasonably.

Application for review of tribunal decision

Either side can apply to the tribunal to review its decision. There must be good reasons for asking for a decision to be reviewed, such as:

  • the tribunal made a mistake in the way it reached its decision,
  • the party was not informed of the hearing or prevented from attending,
  • new relevant evidence has turned up since the hearing.

An application to a tribunal for a review has to be submitted to the tribunal within 14 days of getting the decision.

The solicitor instructed to defend the appeal will liaise with the NMW Technical Team if they consider an application for a review is appropriate.

Appeal to Employment Appeal Tribunal

Either side can apply to the Employment Appeal Tribunal (NMWM15090) if they think the tribunal judgment is incorrect in law. An appeal must be submitted to the Employment Appeal Tribunal within 42 days of getting the decision. This time limit runs at the same time as the time limit to apply for a review so parties should NOT wait for the outcome of a review if they also wish to appeal to the Employment Appeal Tribunal.

The solicitors acting for the Department will consider whether to apply for a review or submit an appeal. As judgments from the Employment Appeal Tribunal set a legal precedent, HM Revenue & Customs will consult with the Department for Business, Innovation & Skills (NMWM02020) to consider any policy issues before proceeding with an appeal.