NMWM15130 - Enforcement and proceedings: employer submits defence against judgment

It is possible that during the process of the Department obtaining a civil judgment (decree in Scotland) for arrears of National Minimum Wage, the employer may submit a defence to the respective county court (Sheriff Court in Scotland).

In such circumstances, the solicitor representing HM Revenue & Customs (NMWM02030) will seek to get the employer’s defence struck out on the basis that;

• they can only seek to challenge or amend a Notice of Underpayment by submitting an appeal to an Employment Tribunal (Industrial Tribunal in Northern Ireland), and
• they had either failed to submit such an appeal, or an appeal had resulted in arrears still remaining outstanding.

The Department would suggest that the county court (Sheriff Court in Scotland) is not the forum to challenge or appeal a Notice of Underpayment and as such, the employer would have no real prospect of defending the claim.

However, exceptionally, the county court (Sheriff Court in Scotland) may still choose to hear the case. The case management regarding the hearing will be managed by the solicitor engaged by the Department. It is possible that the hearing will simply wish to check that the employer has been sufficiently informed of the debt and all that will be required is to demonstrate that the notice was correctly addressed and served (NMWM13280). It is rare that the court will wish to examine the evidence which the NMW Officer considered to calculate the arrears on the notice but if this is required the solicitor will liaise with the NMW Technical Team and the local team as appropriate and the NMW Officer may have to appear as a witness to the court.