Office of Public Sector Information
(5) The rights conferred by subsection (1) above are exercisable only if the worker gives notice (a “production notice”) to his employer requesting the production of any relevant records relating to such period as may be described in the notice.
(6) If the worker intends to exercise the right conferred by subsection (4)(b) above, the production notice must contain a statement of that intention.
(7) Where a production notice is given, the employer shall give the worker reasonable notice of the place and time at which the relevant records will be produced.
(8) The place at which the relevant records are produced must be—
(a) the worker’s place of work; or
(b) any other place at which it is reasonable, in all the circumstances, for the worker to attend to inspect the relevant records; or
(c) such other place as may be agreed between the worker and the employer.
(9) The relevant records must be produced—
(a) before the end of the period of fourteen days following the date of receipt of the production notice; or
(b) at such later time as may be agreed during that period between the worker and the employer.
(10) In this section—
“records” means records which the worker’s employer is required to keep and, at the time of receipt of the production notice, preserve in accordance with section 9 above;
“relevant records” means such parts of, or such extracts from, any records as are relevant to establishing whether or not the worker has, for any pay reference period to which the records relate, been remunerated by the employer at a rate which is at least equal to the national minimum wage.
(1) A complaint may be presented to an employment tribunal by a worker on the ground that the employer—
(a) failed to produce some or all of the relevant records in accordance with subsections (8) and (9) of section 10 above; or
(b) failed to allow the worker to exercise some or all of the rights conferred by subsection (1)(b) or (4)(b) of that section.
(2) Where an employment tribunal finds a complaint under this section well-founded, the tribunal shall—
(a) make a declaration to that effect; and
(b) make an award that the employer pay to the worker a sum equal to 80 times the hourly amount of the national minimum wage (as in force when the award is made).
(3) An employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal before the expiry of the period of three months following—
(a) the end of the period of fourteen days mentioned in paragraph (a) of subsection (9) of section 10 above; or
(b) in a case where a later day was agreed under paragraph (b) of that subsection, that later day.
(4) Where the employment tribunal is satisfied that it was not reasonably practicable for a complaint under this section to be presented before the expiry of the period of three months mentioned in subsection (3) above, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.
(5) Expressions used in this section and in section 10 above have the same meaning in this section as they have in that section.
(1) Regulations may make provision for the purpose of conferring on a worker the right to be given by his employer, at or before the time at which any payment of remuneration is made to the worker, a written statement.
(2) The regulations may make provision with respect to the contents of any such statement and may, in particular, require it to contain—
(a) prescribed information relating to this Act or any regulations under it; or
(b) prescribed information for the purpose of assisting the worker to determine whether he has been remunerated at a rate at least equal to the national minimum wage during the period to which the payment of remuneration relates.
(3) Any statement required to be given under this section to a worker by his employer may, if the worker is an employee, be included in the written itemised pay statement required to be given to him by his employer under section 8 of the [1996 c. 18.] Employment Rights Act 1996 or Article 40 of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996, as the case may be.
(4) The regulations may make provision for the purpose of applying—
(a) sections 11 and 12 of the [1996 c. 18.] Employment Rights Act 1996 (references to employment tribunals and determination of references), or
(b) in relation to Northern Ireland, Articles 43 and 44 of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996 (references to industrial tribunals and determination of references),
in relation to a worker and any such statement as is mentioned in subsection (1) above as they apply in relation to an employee and a statement required to be given to him by his employer under section 8 of that Act or Article 40 of that Order, as the case may be.
(1) The Secretary of State—
(a) may appoint officers to act for the purposes of this Act; and
(b) may, instead of or in addition to appointing any officers under this section, arrange with any Minister of the Crown or government department, or any body performing functions on behalf of the Crown, that officers of that Minister, department or body shall act for those purposes.
(2) When acting for the purposes of this Act, an officer shall, if so required, produce some duly authenticated document showing his authority so to act.
(3) If it appears to an officer that any person with whom he is dealing while acting for the purposes of this Act does not know that he is an officer so acting, the officer shall identify himself as such to that person.
(1) An officer acting for the purposes of this Act shall have power for the performance of his duties—
(a) to require the production by a relevant person of any records required to be kept and preserved in accordance with regulations under section 9 above and to inspect and examine those records and to copy any material part of them;
(b) to require a relevant person to furnish to him (either alone or in the presence of any other person, as the officer thinks fit) an explanation of any such records;
(c) to require a relevant person to furnish to him (either alone or in the presence of any other person, as the officer thinks fit) any additional information known to the relevant person which might reasonably be needed in order to establish whether this Act, or any enforcement notice under section 19 below, is being or has been complied with;
(d) at all reasonable times to enter any relevant premises in order to exercise any power conferred on the officer by paragraphs (a) to (c) above.
(2) No person shall be required under paragraph (b) or (c) of subsection (1) above to answer any question or furnish any information which might incriminate the person or, if married, the person’s spouse.
(3) The powers conferred by subsection (1) above include power, on reasonable written notice, to require a relevant person—
(a) to produce any such records as are mentioned in paragraph (a) of that subsection to an officer at such time and place as may be specified in the notice; or
(b) to attend before an officer at such time and place as may be specified in the notice to furnish any such explanation or additional information as is mentioned in paragraph (b) or (c) of that subsection.
(4) In this section “relevant person” means any person whom an officer acting for the purposes of this Act has reasonable cause to believe to be—
(a) the employer of a worker;
(b) a person who for the purposes of section 34 below is the agent or the principal;
(c) a person who supplies work to an individual who qualifies for the national minimum wage;
(d) a worker, servant or agent of a person falling within paragraph (a), (b) or (c) above; or
(e) a person who qualifies for the national minimum wage.
(5) In this section “relevant premises” means any premises which an officer acting for the purposes of this Act has reasonable cause to believe to be—
(a) premises at which an employer carries on business;
(b) premises which an employer uses in connection with his business (including any place used, in connection with that business, for giving out work to home workers, within the meaning of section 35 below); or
(c) premises of a person who for the purposes of section 34 below is the agent or the principal.
(1) This section applies to any information obtained by an officer acting for the purposes of this Act, whether by virtue of paragraph (a) or paragraph (b) of section 13(1) above.
(2) Information to which this section applies vests in the Secretary of State.
(3) Information to which this section applies may be used for any purpose relating to this Act by—
(a) the Secretary of State; or
(b) any relevant authority whose officer obtained the information.
(4) Information to which this section applies—
(a) may be supplied by, or with the authorisation of, the Secretary of State to any relevant authority for any purpose relating to this Act; and
(b) may be used by the recipient for any purpose relating to this Act.
(5) Information supplied under subsection (4) above—
(a) shall not be supplied by the recipient to any other person or body unless it is supplied for the purposes of any civil or criminal proceedings relating to this Act; and
(b) shall not be supplied in those circumstances without the authorisation of the Secretary of State.
(6) This section does not limit the circumstances in which information may be supplied or used apart from this section.
(7) Subsection (2) above does not affect the title or rights of—
(a) any person whose property the information was immediately before it was obtained as mentioned in subsection (1) above; or
(b) any person claiming title or rights through or under such a person otherwise than by virtue of any power conferred by or under this Act.
(8) In this section “relevant authority” means any Minister of the Crown who, or government department or other body which, is party to arrangements made with the Secretary of State which are in force under section 13(1)(b) above.
(1) This section applies to information which has been obtained by an officer acting for the purposes of any of the agricultural wages legislation.
(2) Information to which this section applies may, with the authorisation of the relevant authority, be supplied to the Secretary of State for use for any purpose relating to this Act.
(3) Information supplied under subsection (2) above may be supplied by the recipient to any Minister of the Crown, government department or other body if—
(a) arrangements made between the recipient and that Minister, department or body under section 13(1)(b) above are in force; and
(b) the information is supplied for any purpose relating to this Act.
(4) Except as provided by subsection (3) above, information supplied under subsection (2) or (3) above—
(a) shall not be supplied by the recipient to any other person or body unless it is supplied for the purposes of any civil or criminal proceedings relating to this Act; and
(b) shall not be supplied in those circumstances without the authorisation of the relevant authority.
(5) This section does not limit the circumstances in which information may be supplied or used apart from this section.
(6) In this section—
“the agricultural wages legislation” means—
the [1948 c. 47.] Agricultural Wages Act 1948;
the [1949 c. 30.] Agricultural Wages (Scotland) Act 1949; and
the [S.I. 1977/2151 (N.I.22).] Agricultural Wages (Regulation) (Northern Ireland) Order 1977;
“relevant authority” means—
in relation to information obtained by an officer acting in England, the Minister of Agriculture, Fisheries and Food;
in relation to information obtained by an officer acting in Wales, the Minister of the Crown with the function of appointing officers under section 12 of the [1948 c. 47.] Agricultural Wages Act 1948 in relation to Wales;
in relation to information obtained by an officer acting in an area which is partly in England and partly in Wales, the Ministers mentioned in paragraphs (a) and (b) above acting jointly;
in relation to information obtained by an officer acting in Scotland, the Minister of the Crown with the function of appointing officers under section 12 of the [1949 c. 30.] Agricultural Wages (Scotland) Act 1949; and
in relation to information obtained by an officer acting in Northern Ireland, the Department of Agriculture for Northern Ireland.
(1) If a worker who qualifies for the national minimum wage is remunerated for any pay reference period by his employer at a rate which is less than the national minimum wage, the worker shall be taken to be entitled under his contract to be paid, as additional remuneration in respect of that period, the amount described in subsection (2) below.
(2) That amount is the difference between—
(a) the relevant remuneration received by the worker for the pay reference period; and
(b) the relevant remuneration which the worker would have received for that period had he been remunerated by the employer at a rate equal to the national minimum wage.
(3) In subsection (2) above, “relevant remuneration” means remuneration which falls to be brought into account for the purposes of regulations under section 2 above.
(1) If the persons who are the worker and the employer for the purposes of section 17 above would not (apart from this section) fall to be regarded as the worker and the employer for the purposes of—
(a) Part II of the [1996 c. 18.] Employment Rights Act 1996 (protection of wages), or
(b) in relation to Northern Ireland, Part IV of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996,
they shall be so regarded for the purposes of the application of that Part in relation to the entitlement conferred by that section.
(2) In the application by virtue of subsection (1) above of—
(a) Part II of the [1996 c. 18.] Employment Rights Act 1996, or
(b) Part IV of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996,
in a case where there is or was, for the purposes of that Part, no worker’s contract between the persons who are the worker and the employer for the purposes of section 17 above, it shall be assumed that there is or, as the case may be, was such a contract.
(3) For the purpose of enabling the amount described as additional remuneration in subsection (1) of section 17 above to be recovered in civil proceedings on a claim in contract in a case where in fact there is or was no worker’s contract between the persons who are the worker and the employer for the purposes of that section, it shall be assumed for the purpose of any civil proceedings, so far as relating to that amount, that there is or, as the case may be, was such a contract.
(1) If an officer acting for the purposes of this Act is of the opinion that a worker who qualifies for the national minimum wage has not been remunerated for any pay reference period by his employer at a rate at least equal to the national minimum wage, the officer may serve a notice (an “enforcement notice”) on the employer requiring the employer to remunerate the worker for pay reference periods ending on or after the date of the notice at a rate equal to the national minimum wage.
(2) An enforcement notice may also require the employer to pay to the worker within such time as may be specified in the notice the sum due to the worker under section 17 above in respect of the employer’s previous failure to remunerate the worker at a rate at least equal to the national minimum wage.
(3) The same enforcement notice may relate to more than one worker (and, where it does so, may be so framed as to relate to workers specified in the notice or to workers of a description so specified).
(4) A person on whom an enforcement notice is served may appeal against the notice before the end of the period of four weeks following the date of service of the notice.
(5) An appeal under subsection (4) above lies to an employment tribunal.
(6) On an appeal under subsection (4) above, the employment tribunal shall dismiss the appeal unless it is established—
(a) that, in the case of the worker or workers to whom the enforcement notice relates, the facts are such that an officer who was aware of them would have had no reason to serve any enforcement notice on the appellant; or
(b) where the enforcement notice relates to two or more workers, that the facts are such that an officer who was aware of them would have had no reason to include some of the workers in any enforcement notice served on the appellant; or
(c) where the enforcement notice imposes a requirement under subsection (2) above in relation to a worker,—
(i) that no sum was due to the worker under section 17 above; or
(ii) that the amount specified in the notice as the sum due to the worker under that section is incorrect;
and in this subsection any reference to a worker includes a reference to a person whom the enforcement notice purports to treat as a worker.
(7) Where an appeal is allowed by virtue of paragraph (a) of subsection (6) above, the employment tribunal shall rescind the enforcement notice.
(8) If, in a case where subsection (7) above does not apply, an appeal is allowed by virtue of paragraph (b) or (c) of subsection (6) above—
(a) the employment tribunal shall rectify the enforcement notice; and
(b) the enforcement notice shall have effect as if it had originally been served as so rectified.
(9) The powers of an employment tribunal in allowing an appeal in a case where subsection (8) above applies shall include power to rectify, as the tribunal may consider appropriate in consequence of its decision on the appeal, any penalty notice which has been served under section 21 below in respect of the enforcement notice.
(10) Where a penalty notice is rectified under subsection (9) above, it shall have effect as if it had originally been served as so rectified.
(1) If an enforcement notice is not complied with in whole or in part, an officer acting for the purposes of this Act may, on behalf of any worker to whom the notice relates,—
(a) present a complaint under section 23(1)(a) of the [1996 c. 18.] Employment Rights Act 1996 (deductions from worker’s wages in contravention of section 13 of that Act) to an employment tribunal in respect of any sums due to the worker by virtue of section 17 above; or
(b) in relation to Northern Ireland, present a complaint under Article 55(1)(a) of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996 (deductions from worker’s wages in contravention of Article 45 of that Order) to an industrial tribunal in respect of any sums due to the worker by virtue of section 17 above; or
(c) commence other civil proceedings for the recovery, on a claim in contract, of any sums due to the worker by virtue of section 17 above.
(2) The powers conferred by subsection (1) above for the recovery of sums due from an employer to a worker shall not be in derogation of any right which the worker may have to recover such sums by civil proceedings.
(1) If an officer acting for the purposes of this Act is satisfied that a person on whom an enforcement notice has been served has failed, in whole or in part, to comply with the notice, the officer may serve on that person a notice (a “penalty notice”) requiring the person to pay a financial penalty to the Secretary of State.
(2) A penalty notice must state—
(a) the amount of the financial penalty;
(b) the time within which the financial penalty is to be paid (which must not be less than four weeks from the date of service of the notice);
(c) the period to which the financial penalty relates;
(d) the respects in which the officer is of the opinion that the enforcement notice has not been complied with; and
(e) the calculation of the amount of the financial penalty.
(3) The amount of the financial penalty shall be calculated at a rate equal to twice the hourly amount of the national minimum wage (as in force at the date of the penalty notice) in respect of each worker to whom the failure to comply relates for each day during which the failure to comply has continued in respect of the worker.
(4) The Secretary of State may by regulations from time to time amend the multiplier for the time being specified in subsection (3) above in relation to the hourly amount of the national minimum wage.
(5) A financial penalty under this section—
(a) in England and Wales, shall be recoverable, if a county court so orders, by execution issued from the county court or otherwise as if it were payable under an order of that court;
(b) in Scotland, may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland;
(c) in Northern Ireland, shall be recoverable, if the county court so orders, as if it were payable under an order of that court.
(6) Where a person has appealed under subsection (4) of section 19 above against an enforcement notice and the appeal has not been withdrawn or finally determined, then, notwithstanding the appeal,—
(a) the enforcement notice shall have effect; and
(b) an officer may serve a penalty notice in respect of the enforcement notice.
(7) If, in a case falling within subsection (6) above, an officer serves a penalty notice in respect of the enforcement notice, the penalty notice—
(a) shall not be enforceable until the appeal has been withdrawn or finally determined; and
(b) shall be of no effect if the enforcement notice is rescinded as a result of the appeal; but
(c) subject to paragraph (b) above and section 22(4) and (6)(a) below, as from the withdrawal or final determination of the appeal shall be enforceable as if paragraph (a) above had not had effect.
(8) Any sums received by the Secretary of State by virtue of this section shall be paid into the Consolidated Fund.
(1) A person on whom a penalty notice is served may appeal against the notice before the end of the period of four weeks following the date of service of the notice.
(2) An appeal under subsection (1) above lies to an employment tribunal.
(3) On an appeal under subsection (1) above, the employment tribunal shall dismiss the appeal unless it is shown—
(a) that, in the case of each of the allegations of failure to comply with the enforcement notice, the facts are such that an officer who was aware of them would have had no reason to serve any penalty notice on the appellant; or
(b) that the penalty notice is incorrect in some of the particulars which affect the amount of the financial penalty; or
(c) that the calculation of the amount of the financial penalty is incorrect;
and for the purposes of any appeal relating to a penalty notice, the enforcement notice in question shall (subject to rescission or rectification on any appeal brought under section 19 above) be taken to be correct.
(4) Where an appeal is allowed by virtue of paragraph (a) of subsection (3) above, the employment tribunal shall rescind the penalty notice.
(5) If, in a case where subsection (4) above does not apply, an appeal is allowed by virtue of paragraph (b) or (c) of subsection (3) above—
(a) the employment tribunal shall rectify the penalty notice; and
(b) the penalty notice shall have effect as if it had originally been served as so rectified.
(6) Where a person has appealed under subsection (1) above against a penalty notice and the appeal has not been withdrawn or finally determined, the penalty notice—
(a) shall not be enforceable until the appeal has been withdrawn or finally determined; but
(b) subject to subsection (4) above and section 21(7)(a) and (b) above, as from the withdrawal or final determination of the appeal shall be enforceable as if paragraph (a) above had not had effect.
(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer, done on the ground that—
(a) any action was taken, or was proposed to be taken, by or on behalf of the worker with a view to enforcing, or otherwise securing the benefit of, a right of the worker’s to which this section applies; or
(b) the employer was prosecuted for an offence under section 31 below as a result of action taken by or on behalf of the worker for the purpose of enforcing, or otherwise securing the benefit of, a right of the worker’s to which this section applies; or
(c) the worker qualifies, or will or might qualify, for the national minimum wage or for a particular rate of national minimum wage.
(2) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above—
(a) whether or not the worker has the right, or
(b) whether or not the right has been infringed,
but, for that subsection to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.
(3) The following are the rights to which this section applies—
(a) any right conferred by, or by virtue of, any provision of this Act for which the remedy for its infringement is by way of a complaint to an employment tribunal; and
(b) any right conferred by section 17 above.
(4) Except where a person is dismissed in circumstances in which—
(a) by virtue of section 197 of the [1996 c. 18.] Employment Rights Act 1996 (fixed term contracts), Part X of that Act (unfair dismissal) does not apply to the dismissal, or
(b) in relation to Northern Ireland, by virtue of Article 240 of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996, Part XI of that Order does not apply to the dismissal,
this section does not apply where the detriment in question amounts to dismissal within the meaning of that Part.
(1) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 23 above.
(2) Subject to the following provisions of this section, the provisions of—
(a) sections 48(2) to (4) and 49 of the [1996 c. 18.] Employment Rights Act 1996 (complaints to employment tribunals and remedies), or
(b) in relation to Northern Ireland, Articles 71(2) to (4) and 72 of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996 (complaints to industrial tribunals and remedies),
shall apply in relation to a complaint under this section as they apply in relation to a complaint under section 48 of that Act or Article 71 of that Order (as the case may be), but taking references in those provisions to the employer as references to the employer within the meaning of section 23(1) above.
(3) Where—
(a) the detriment to which the worker is subjected is the termination of his worker’s contract, but
(b) that contract is not a contract of employment,
any compensation awarded under section 49 of the [1996 c. 18.] Employment Rights Act 1996 or Article 72 of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996 by virtue of subsection (2) above must not exceed the limit specified in subsection (4) below.
(4) The limit mentioned in subsection (3) above is the total of—
(a) the sum which would be the basic award for unfair dismissal, calculated in accordance with section 119 of the [1996 c. 18.] Employment Rights Act 1996 or Article 153 of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996 (as the case may be), if the worker had been an employee and the contract terminated had been a contract of employment; and
(b) the sum for the time being specified in section 124(1) of that Act or Article 158(1) of that Order (as the case may be) which is the limit for a compensatory award to a person calculated in accordance with section 123 of that Act or Article 157 of that Order (as the case may be).
(5) Where the worker has been working under arrangements which do not fall to be regarded as a worker’s contract for the purposes of—
(a) the [1996 c. 18.] Employment Rights Act 1996, or
(b) in relation to Northern Ireland, the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996,
he shall be treated for the purposes of subsections (3) and (4) above as if any arrangements under which he has been working constituted a worker’s contract falling within section 230(3)(b) of that Act or Article 3(3)(b) of that Order (as the case may be).
(1) After section 104 of the [1996 c. 18.] Employment Rights Act 1996 (assertion of statutory right) there shall be inserted—
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
(a) any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right of the employee’s to which this section applies; or
(b) the employer was prosecuted for an offence under section 31 of the National Minimum Wage Act 1998 as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, a right of the employee’s to which this section applies; or
(c) the employee qualifies, or will or might qualify, for the national minimum wage or for a particular rate of national minimum wage.
National Minimum Wage Act 1998 (C. 39)