Enforcement & Proceedings: Approach taken to enforce arrears via civil proceedings
Enforcing arrears of national minimum wage that are due after the issuing of a notice of underpayment involves the close working of three parties;
- The NMW Officer who issued the notice (and their People Leader),
- NMW Operational Advisory Team and
The NMW Officer commences the enforcement process by referring the case to the NMW Technical Team; by completing the appropriate submission template and providing a copy of the investigation papers.
If the proposed civil action to enforce arrears is in respect of unpaid arrears following a tribunal it is likely that most, if not all, of the relevant investigation papers will already be held by the NMW Technical Team and solicitor. If so, contact the NMW Technical Team regarding what further papers may be required.
NMW Operational Advisory Team
The NMW Operational Advisory Team reviews the case and instructs the relevant solicitor (NMWM15040) to obtain a judgment (decree in Scotland).
The review will focus on two primary areas;
- Is the employer correctly identified and aware of the debt? This involves checking that the employer is correctly named on the notice and that it has been served (NMWM13290) at the appropriate address (NMWM13090).
- Are the arrears contained in the notice enforceable? This involves checking that the arrears are within time limits (NMWM13140), that supporting evidence of time worked and payments is held (NMWM12010) and that the arrears are based on the correct application of the legislation.
The NMW Operational Advisory Team will resolve any queries with the investigating NMW Officer prior to instructing an appropriate solicitor to obtain a judgment. This is known as section 19D action (NMWM15100). The appropriate legal representative of HM Revenue & Customs (NMWM02030) is identified by the location of the proceedings (NMWM15010).
When the solicitor receives instructions from the NMW Technical Team instructing them to undertake enforcement action under section 19D they will usually issue a warning letter to the employer asking them to pay the national minimum wage arrears within 14 days of the date of the warning letter (often described as a pre-action letter) and explaining that failure to do so will result in legal action being taken.
If the solicitor does not receive a response to the warning letter they will submit a claim to obtain judgment to the County Court (Sheriff Court in Scotland) nearest to the employer’s address. The solicitor will keep both the NMW Officer and NMW Technical Team informed of progress.
The length of time enforcement action takes in a civil court can vary considerably.
- If the employer does not submit a defence of a civil claim it can take up to three months or more for the paperwork to be processed and judgment (decree in Scotland) obtained (NMWM15140).
- However, if the employer
- enters into dialogue with the solicitor (NMWM15120), or
- submits a defence (NMWM15130) to the action
it can take nine months or more depending on whether the court allows for a hearing to proceed.