National Minimum Wage Act 1998

1998 CHAPTER 39

An Act to make provision for and in connection with a national minimum wage; to provide for the amendment of certain enactments relating to the remuneration of persons employed in agriculture; and for connected purposes.

[31st July 1998]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Modifications etc. (not altering text)

C1 Act restricted (19.11.1998) by 1998 c. 47, ss. 98(3), 101(2)(a) (with s. 95)

C2 Act excluded (with saving) (prosp.) by 1948 c. 47, s. 17A (as inserted by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I para. 10 (with s. 36))

Act excluded (with saving) (prosp.) by S.I. 1977/2151 (N.I. 22), art. 2A (as inserted by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 23 (with s. 36))

Act excluded (with saving) (prosp.) by 1949 c. 30, s. 17A (as inserted by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 20 (with s. 36))

Act applied with modifications (1.5.1999) by S.I. 1999/1128, art. 2

Entitlement to the national minimum wage U.K.

1 Workers to be paid at least the national minimum wage. U.K.

(1) A person who qualifies for the national minimum wage shall be remunerated by his employer in respect of his work in any pay reference period at a rate which is not less than the national minimum wage.

(2) A person qualifies for the national minimum wage if he is an individual who—

(a) is a worker;

(b) is working, or ordinarily works, in the United Kingdom under his contract; and

(c) has ceased to be of compulsory school age.

(3) The national minimum wage shall be such single hourly rate as the Secretary of State may from time to time prescribe.

(4) For the purposes of this Act a “pay reference period” is such period as the Secretary of State may prescribe for the purpose.

(5) Subsections (1) to (4) above are subject to the following provisions of this Act.

Modifications etc. (not altering text)

C3 S. 1(2)(b) extended (1.5.1999) by S.I. 1999/1128, art. 2

Commencement Information

I1 S. 1 wholly in force at 1.4.1999; s. 1(3)(4) in force for certain purposes at Royal Assent see s. 56(2); s. 1 in force at 1.4.1999 insofar as not already in force by S.I. 1998/2574, art. 2(2), Sch. 2

Regulations relating to the national minimum wage U.K.

2 Determination of hourly rate of remuneration. U.K.

(1) The Secretary of State may by regulations make provision for determining what is the hourly rate at which a person is to be regarded for the purposes of this Act as remunerated by his employer in respect of his work in any pay reference period.

(2) The regulations may make provision for determining the hourly rate in cases where—

(a) the remuneration, to the extent that it is at a periodic rate, is at a single rate;

(b) the remuneration is, in whole or in part, at different rates applicable at different times or in different circumstances;

(c) the remuneration is, in whole or in part, otherwise than at a periodic rate or rates;

(d) the remuneration consists, in whole or in part, of benefits in kind.

(3) The regulations may make provision with respect to—

(a) circumstances in which, times at which, or the time for which, a person is to be treated as, or as not, working, and the extent to which a person is to be so treated;

(b) the treatment of periods of paid or unpaid absence from, or lack of, work and of remuneration in respect of such periods.

(4) The provision that may be made by virtue of paragraph (a) of subsection (3) above includes provision for or in connection with—

(a) treating a person as, or as not, working for a maximum or minimum time, or for a proportion of the time, in any period;

(b) determining any matter to which that paragraph relates by reference to the terms of an agreement.

(5) The regulations may make provision with respect to—

(a) what is to be treated as, or as not, forming part of a person’s remuneration, and the extent to which it is to be so treated;

(b) the valuation of benefits in kind;

(c) the treatment of deductions from earnings;

(d) the treatment of any charges or expenses which a person is required to bear.

(6) The regulations may make provision with respect to—

(a) the attribution to a period, or the apportionment between two or more periods, of the whole or any part of any remuneration or work, whether or not the remuneration is received or the work is done within the period or periods in question;

(b) the aggregation of the whole or any part of the remuneration for different periods;

(c) the time at which remuneration is to be treated as received or accruing.

(7) Subsections (2) to (6) above are without prejudice to the generality of subsection (1) above.

(8) No provision shall be made under this section which treats the same circumstances differently in relation to—

(a) different areas;

(b) different sectors of employment;

(c) undertakings of different sizes;

(d) persons of different ages; or

(e) persons of different occupations.

Commencement Information

I2 S. 2 partly in force; s. 2(1) in force for certain purposes at Royal Assent see s. 56(2)

3 Exclusion of, and modifications for, certain classes of person. U.K.

(1) This section applies to persons who have not attained the age of 26.

[F1 (1A) This section also applies to persons who have attained the age of 26 who are–

(a) within the first six months after the commencement of their employment with an employer by whom they have not previously been employed;

(b) participating in a scheme under which shelter is provided in return for work;

(c) participating in a scheme designed to provide training, work experience or temporary work;

(d) participating in a scheme to assist in the seeking or obtaining of work; or

(e) attending a course of higher education requiring attendance for a period of work experience.]

(2) The Secretary of State may by regulations make provision in relation to any of the persons to whom this section applies—

(a) preventing them being persons who qualify for the national minimum wage; or

(b) prescribing an hourly rate for the national minimum wage other than the single hourly rate for the time being prescribed under section 1(3) above.

(3) No provision shall be made under subsection (2) above which treats persons differently in relation to—

(a) different areas;

(b) different sectors of employment;

(c) undertakings of different sizes; or

(d) different occupations.

(4) If any description of persons who have attained the age of 26 is added by regulations under section 4 below to the descriptions of person to whom this section applies, no provision shall be made under subsection (2) above which treats persons of that description differently in relation to different ages over 26.

Textual Amendments

F1 S. 3(1A) inserted (6.3.1999) by S.I. 1999/583, art. 2

Commencement Information

I3 S. 3 partly in force; s. 3(2) in force for certain purposes at Royal Assent see s. 56(2)

4 Power to add to the persons to whom section 3 applies. U.K.

(1) The Secretary of State may by regulations amend section 3 above by adding descriptions of persons who have attained the age of 26 to the descriptions of person to whom that section applies.

(2) No amendment shall be made under subsection (1) above which treats persons differently in relation to—

(a) different areas;

(b) different sectors of employment;

(c) undertakings of different sizes;

(d) different ages over 26; or

(e) different occupations.

Commencement Information

I4 S. 4 partly in force; s. 4(1) in force for certain purposes at Royal Assent see s. 56(2)

The Low Pay Commission U.K.

5 The first regulations: referral to the Low Pay Commission. U.K.

(1) Before making the first regulations under section 1(3) or (4) or 2 above, the Secretary of State shall refer the matters specified in subsection (2) below to the Low Pay Commission for their consideration.

(2) Those matters are—

(a) what single hourly rate should be prescribed under section 1(3) above as the national minimum wage;

(b) what period or periods should be prescribed under section 1(4) above;

(c) what method or methods should be used for determining under section 2 above the hourly rate at which a person is to be regarded as remunerated for the purposes of this Act;

(d) whether any, and if so what, provision should be made under section 3 above; and

(e) whether any, and if so what, descriptions of person should be added to the descriptions of person to whom section 3 above applies and what provision should be made under that section in relation to persons of those descriptions.

(3) Where matters are referred to the Low Pay Commission under subsection (1) above, the Commission shall, after considering those matters, make a report to the Prime Minister and the Secretary of State which shall contain the Commission’s recommendations about each of those matters.

(4) If, following the report of the Low Pay Commission under subsection (3) above, the Secretary of State decides—

(a) not to make any regulations implementing the Commission’s recommendations, or

(b) to make regulations implementing only some of the Commission’s recommendations, or

(c) to prescribe under section 1(3) above a single hourly rate which is different from the rate recommended by the Commission, or

(d) to make regulations which in some other respect differ from the recommendations of the Commission, or

(e) to make regulations which do not relate to a recommendation of the Commission,

the Secretary of State shall lay a report before each House of Parliament containing a statement of the reasons for the decision.

(5) If the Low Pay Commission fail to make their report under subsection (3) above within the time allowed for doing so under section 7 below, any power of the Secretary of State to make regulations under this Act shall be exercisable as if subsection (1) above had not been enacted.

6 Referral of matters to the Low Pay Commission at any time. U.K.

(1) The Secretary of State may at any time refer to the Low Pay Commission such matters relating to this Act as the Secretary of State thinks fit.

(2) Where matters are referred to the Low Pay Commission under subsection (1) above, the Commission shall, after considering those matters, make a report to the Prime Minister and the Secretary of State which shall contain the Commission’s recommendations about each of those matters.

(3) If on a referral under this section—

(a) the Secretary of State seeks the opinion of the Low Pay Commission on a matter falling within section 5(2) above,

(b) the Commission’s report under subsection (2) above contains recommendations in relation to that matter, and

(c) implementation of any of those recommendations involves the exercise of any power to make regulations under sections 1 to 4 above,

subsection (4) of section 5 above shall apply in relation to the report, so far as relating to the recommendations falling within paragraph (c) above, as it applies in relation to a report under subsection (3) of that section.

(4) If on a referral under this section—

(a) the Secretary of State seeks the opinion of the Low Pay Commission on any matter falling within section 5(2) above, but

(b) the Commission fail to make their report under subsection (2) above within the time allowed under section 7 below,

the Secretary of State may make regulations under sections 1 to 4 above as if the opinion of the Commission had not been sought in relation to that matter.

7 Referrals to, and reports of, the Low Pay Commission: supplementary. U.K.

(1) This section applies where matters are referred to the Low Pay Commission under section 5 or 6 above.

(2) The Secretary of State may by notice require the Low Pay Commission to make their report within such time as may be specified in the notice.

(3) The time allowed to the Low Pay Commission for making their report may from time to time be extended by further notice given to them by the Secretary of State.

(4) Before arriving at the recommendations to be included in their report, the Low Pay Commission shall consult—

(a) such organisations representative of employers as they think fit;

(b) such organisations representative of workers as they think fit; and

(c) if they think fit, any other body or person.

(5) In considering what recommendations to include in their report, the Low Pay Commission—

(a) shall have regard to the effect of this Act on the economy of the United Kingdom as a whole and on competitiveness; and

(b) shall take into account any additional factors which the Secretary of State specifies in referring the matters to them.

(6) The report of the Low Pay Commission must—

(a) identify the members of the Commission making the report;

(b) explain the procedures adopted in respect of consultation, the taking of evidence and the receiving of representations;

(c) set out the reasons for their recommendations; and

(d) if the Secretary of State has specified any additional factor to be taken into account under subsection (5)(b) above, state that they have taken that factor into account in making their recommendations.

(7) The Secretary of State shall—

(a) lay a copy of any report of the Low Pay Commission before each House of Parliament; and

(b) arrange for the report to be published.

(8) In this section—

• “recommendations” means the recommendations required to be contained in a report under section 5(3) or 6(2) above, as the case may be;

• “report” means the report which the Low Pay Commission are required to make under section 5(3) or 6(2) above, as the case may be, on the matters referred to them as mentioned in subsection (1) above.

8 The Low Pay Commission. U.K.

F2 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) The Secretary of State may at any time appoint a body, to be known as “the Low Pay Commission”, to discharge the functions conferred or imposed on the Low Pay Commission under this Act.

(10) Schedule 1 to this Act shall have effect with respect to the constitution and proceedings of the body appointed under subsection (9) above.

(11) Where the Secretary of State exercises the power conferred by subsection (9) above, the body which is to be regarded for the purposes of this Act as being the Low Pay Commission as respects the referral of any matter to the Low Pay Commission by the Secretary of State after the exercise of the power is the body appointed under that subsection.

F3 (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3 (13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3 (14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2 S. 8(1)-(8) repealed (22.7.2004) by Statute Law (Repeals) Act 2004 (c. 14), Sch. 1 Pt. 8

F3 S. 8(12)-(14) repealed (22.7.2004) by Statute Law (Repeals) Act 2004 (c. 14), Sch. 1 Pt. 8

Records U.K.

9 Duty of employers to keep records. U.K.

For the purposes of this Act, the Secretary of State may by regulations make provision requiring employers—

(a) to keep, in such form and manner as may be prescribed, such records as may be prescribed; and

(b) to preserve those records for such period as may be prescribed.

Modifications etc. (not altering text)

C4 S. 9 modified (prosp.) by 1948 c. 47, s. 3A(1)-(4) (as inserted by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36))

S. 9 modified (prosp.) by 1949 c. 30, s. 3A(1)-(3) (as inserted by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36))

C5 S. 9 extended (with modications) (prosp.) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36))

10 Worker’s right of access to records. U.K.

(1) A worker may, in accordance with the following provisions of this section,—

(a) require his employer to produce any relevant records; and

(b) inspect and examine those records and copy any part of them.

(2) The rights conferred by subsection (1) above are exercisable only if the worker believes on reasonable grounds that he is or may be being, or has or may have been, remunerated for any pay reference period by his employer at a rate which is less than the national minimum wage.

(3) The rights conferred by subsection (1) above are exercisable only for the purpose of establishing whether or not the worker is being, or has been, remunerated for any pay reference period by his employer at a rate which is less than the national minimum wage.

(4) The rights conferred by subsection (1) above are exercisable—

(a) by the worker alone; or

(b) by the worker accompanied by such other person as the worker may think fit.

(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.

Modifications etc. (not altering text)

C6 S. 10 modified by 1948 c. 47, s. 3A(1)-(4) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36); S.I. 1999/685, art. 2, Sch.)

S. 10 modified by 1949 c. 30, s. 3A(1)-(3) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36); S.I. 1999/685, art. 2, Sch. (with art. 3))

C7 S. 10 extended (with modications) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36); S.I. 1999/685, art. 2, Sch. (with art. 3))

11 Failure of employer to allow access to records. U.K.

(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.

Modifications etc. (not altering text)

C8 S. 11 modified by 1948 c. 47, s. 3A(1)-(4) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36); S.I. 1999/685, art. 2, Sch.)

S. 11 modified by 1949 c. 30, s. 3A(1)-(3) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36); S.I. 1999/685, art. 2, Sch. (with art. 3))

C9 S. 11 extended (with modications) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36); S.I. 1999/685, art. 2, Sch.)

12 Employer to provide worker with national minimum wage statement. U.K.

(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 M1 Employment Rights Act 1996 or Article 40 of the M2 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 M3 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 M4 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.

Commencement Information

I5 S. 12 wholly in force at 1.4.1999; s. 12(1)(2) in force fro certain purposes at Royal Assent see s. 56(2); s. 12 in force at 1.4.1999 insofar as not already in force by S.I. 1998/2574, art. 2(2), Sch. 2

Marginal Citations

M1 1996 c. 18.

M2 S.I. 1996/1919 (N.I.16).

M3 1996 c. 18.

M4 S.I. 1996/1919 (N.I.16).

Officers U.K.

13 Appointment of officers. U.K.

(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.

14 Powers of officers. U.K.

(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 [F4 married or a civil partner, the person’s spouse or civil partner].

(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.

Textual Amendments

F4 Words in s. 14(2) substituted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 155; S.I. 2005/3175, art. 2(2)

Modifications etc. (not altering text)

C10 S. 14 modified by 1948 c. 47, s. 3A(1)-(4) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36); S.I. 1999/685, art. 2, Sch.)

S. 14 modified by 1949 c. 30, s. 3A(1)-(3) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36); S.I. 1999/685, art. 2, Sch. (with art. 3))

C11 S. 14 extended (with modifications) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36); S.I. 1999/685, art. 2, Sch.)

Information U.K.

15 Information obtained by officers. U.K.

(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.

[F5 (6) This section—

(a) does not limit the circumstances in which information may be supplied or used apart from this section; and

(b) is subject to section 148 of the Finance Act 2000 (use of minimum wage information).]

[F6 (6A) Nothing in this section prevents a disclosure in accordance with section 16A below.]

(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.

Textual Amendments

F5 S. 15(6) substituted (28.7.2000) by 2000 c. 17, s. 148(4)

F6 S. 15(6A) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), s. 59(3), Sch. 1 para. 40; S.I. 2005/872, art. 4, Sch.

16 Information obtained by agricultural wages officers. U.K.

(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.

[F7 (5A) Nothing in this section prevents a disclosure in accordance with section 16A below.]

(6) In this section—

• “the agricultural wages legislation” means—

  (a)

  the M5 Agricultural Wages Act 1948;

  (b)

  the M6 Agricultural Wages (Scotland) Act 1949; and

  (c)

  the M7 Agricultural Wages (Regulation) (Northern Ireland) Order 1977;

• “relevant authority” means—

  (a)

  in relation to information obtained by an officer acting in England, the Minister of Agriculture, Fisheries and Food;

  (b)

  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 M8 Agricultural Wages Act 1948 in relation to Wales;

  (c)

  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;

  (d)

  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 M9 Agricultural Wages (Scotland) Act 1949; and

  (e)

  in relation to information obtained by an officer acting in Northern Ireland, the Department of Agriculture for Northern Ireland.

Textual Amendments

F7 S. 16(5A) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), s. 59(3), Sch. 1 para. 41; S.I. 2005/872, art. 4, Sch.

Modifications etc. (not altering text)

C12 S. 16: transfer of certain functions (1.7.1999) by S.I. 1999/672, art. 2 Sch. 1

Marginal Citations

M5 1948 c. 47.

M6 1949 c. 30.

M7 S.I. 1977/2151 (N.I.22).

M8 1948 c. 47.

M9 1949 c. 30.

[F8 16A Disclosure of information by officers U.K.

(1) Subsection (2) applies to information obtained for the purposes of the relevant legislation by an enforcement officer so far as that information relates to an identifiable worker or agency worker.

(2) In order to enable or assist him to act for the purposes of the relevant legislation, the enforcement officer may disclose all or any of the information to the worker or, as the case may be, agency worker concerned.

(3) Subsection (4) applies to information obtained for the purposes of the relevant legislation by an enforcement officer so far as that information relates to an identifiable employer or person who is the agent or the principal for the purposes of section 34 below.

(4) In order to enable or assist him to act for the purposes of the relevant legislation, the officer may disclose all or any of the information to the employer, the agent or, as the case may be, the principal concerned.

(5) In this section—

• “agency worker” shall be construed in accordance with section 34 below;

• “enforcement officer” means—

  (a)

  an officer acting for the purposes of this Act, whether by virtue of paragraph (a) or (b) of section 13(1) above;

  (b)

  an officer acting for the purposes of the Agricultural Wages Act 1948; or

  (c)

  an officer acting for the purposes of the Agricultural Wages (Regulation) (Northern Ireland) Order 1977;

• “the relevant legislation” means—

  (a)

  in relation to an enforcement officer acting for the purposes of this Act, this Act;

  (b)

  in relation to an enforcement officer acting for the purposes of the Agricultural Wages Act 1948, that Act; and

  (c)

  in relation to an enforcement officer acting for the purposes of the Agricultural Wages (Regulation) (Northern Ireland) Order 1977, that Order.]

Textual Amendments

F8 S. 16A inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 44, 59(3); S.I. 2005/872, art. 4, Sch. (with art. 14)

Enforcement U.K.

17 Non-compliance: worker entitled to additional remuneration. U.K.

(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.

Modifications etc. (not altering text)

C13 S. 17 modified by 1948 c. 47, s. 3A(1)-(4) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36); S.I. 1999/685, art. 2, Sch.)

S. 17 modified by 1949 c. 30, s. 3A(1)-(3) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36); S.I. 1999/685, art. 2, Sch.)

C14 S. 17 extended (with modifications) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36); S.I. 1999/685, art. 2, Sch.)

C15 S. 17 modified (1.4.1999) by 1948 c. 47, s. 3A(3A) (as amended (1.4.1999) by S.I. 1999/712, reg. 2(3)

C16 S. 17 amended (1.4.1999) by 1949 c. 30, s. 3A(3A) (as inserted (1.4.1999) by S.I. 1999/750, reg. 2(3)

18 Enforcement in the case of special classes of worker. U.K.

(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 M10 Employment Rights Act 1996 (protection of wages), or

(b) in relation to Northern Ireland, Part IV of the M11 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 M12 Employment Rights Act 1996, or

(b) Part IV of the M13 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.

Marginal Citations

M10 1996 c. 18.

M11 S.I. 1996/1919 (N.I.16).

M12 1996 c. 18.

M13 S.I. 1996/1919 (N.I.16).

19 Power of officer to issue enforcement notice. U.K.

(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.

[F9 (2A) If an officer acting for the purposes of this Act is of the opinion that a worker who has at any time qualified for the national minimum wage has not been remunerated for any pay reference period (whether ending before or after the coming into force of this subsection) by his employer at a rate at least equal to the national minimum wage, the officer may serve on the employer an enforcement notice which imposes a requirement under subsection (2) above in relation to the worker, whether or not a requirement under subsection (1) above is, or may be, imposed in relation to that worker (or any other worker to whom the notice relates).

(2B) An enforcement notice may not impose a requirement under subsection (2) above in respect of any pay reference period ending more than 6 years before the date on which the notice is served.]

[F10 (2C) Where an enforcement notice imposes a requirement under subsection (2) above, the amount specified in the notice as the sum due to the worker under section 17 above need not include any sum so due to him in respect of any very recent pay reference period (although the amount so specified may include any such sum).

(2D) In subsection (2C) above a “very recent” pay reference period means a pay reference period ending less than 3 months before the date on which the notice is served.]

(3) [F11 An] 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 [F12 too great; or]

[F13 (iii) that the notice contravenes subsection (2B) above;]

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.

Textual Amendments

F9 S. 19(2A)(2B) inserted (8.7.2003) by National Minimum Wage (Enforcement Notices) Act 2003 (c. 8), ss. 1, 2(2)

F10 S. 19(2C)(2D) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 45(2), 59(3) (with s. 44(4)); S.I. 2005/872, art. 4, Sch. (with art. 15)

F11 Word in s. 19(3) substituted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 45(3), 59(3) (with s. 44(4)); S.I. 2005/872, art. 4, Sch. (with art. 15)

F12 Words in s. 19(6)(c)(ii) substituted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 46(2)(a), 59(3) (with s. 46(4)); S.I. 2005/872, art. 4, Sch. (with art. 15)

F13 S. 19(6)(c)(iii) inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 46(2)(b), 59(3) (with s. 46(4)); S.I. 2005/872, art. 4, Sch. (with art. 15)

Modifications etc. (not altering text)

C17 S. 19 modified by 1948 c. 47, s. 3A(1)-(4) (as inserted (1.4.1999) by 1998 c. 39, s. 47, Sch. 2 Pt. I para. 3 (with s. 36); S.I. 1999/685, art. 2, Sch.)

S. 19 modified by 1949 c. 30, s. 3A(1)-(3) (as inserted (1.4.1999) by 1998 c. 39, s. 47, Sch. 2 Pt. II para. 13 (with s. 36); S.I. 1999/685, art. 2, Sch. (with art. 3))

C18 S. 19 extended (with modifications) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36); S.I. 1999/685, art. 2, Sch.)

20 Non-compliance: power of officer to sue on behalf of worker. U.K.

(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 M14 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 M15 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.

Modifications etc. (not altering text)

C19 S. 20 modified (prosp.) by 1948 c. 47, s. 3A(1)-(4) (as inserted by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36))

S. 20 modified (prosp.) by 1949 c. 30, s. 3A(1)-(3) (as inserted by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36))

C20 S. 20 extended (with modifications) (prosp.) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36))

Marginal Citations

M14 1996 c. 18.

M15 S.I. 1996/1919 (N.I.16).

21 Financial penalty for non-compliance. U.K.

(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.

Modifications etc. (not altering text)

C21 S. 21 modified (prosp.) by 1948 c. 47, s. 3A(1)-(4) (as inserted by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36))

S. 21 modified (prosp.) by 1949 c. 30, s. 3A(1)-(3) (as inserted by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36))

C22 S. 21 extended (with modifications) (prosp.) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36))

Commencement Information

I6 S. 21 wholly in force at 1.4.1999; s. 21(4) in force for certain purposes at Royal Assent see s. 56(2); s. 21 in force at 1.4.1999 insofar as not already in force by S.I. 1998/2574, art. 2(2), Sch. 2

22 Appeals against penalty notices. U.K.

(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

[F14 (b) that the amount of the financial penalty is too great because the penalty notice is incorrect in some of the particulars which affect that amount; or

(c) that the amount of the financial penalty is too great because its calculation 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.

Textual Amendments

F14 S. 22(3)(b)(c) substituted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 46(3), 59(3) (with s. 46(4)); S.I. 2005/872, art. 4, Sch. (with art. 15)

Modifications etc. (not altering text)

C23 S. 22 modified (prosp.) by 1948 c. 47, s. 3A(1)-(4) (as inserted by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36))

S. 22 modified (prosp.) by 1949 c. 30, s. 3A(1)-(3) (as inserted by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36))

C24 S. 22 extended (with modifications) (prosp.) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36))

[F15 22A Withdrawal of enforcement notice U.K.

(1) Where an enforcement notice has been served (and has not already been withdrawn or rescinded), an officer acting for the purposes of this Act may withdraw the enforcement notice by serving notice of the withdrawal on the employer.

(2) Subsection (3) applies if an enforcement notice is withdrawn and either—

(a) no new enforcement notice is served in accordance with section 22B; or

(b) a new enforcement notice is so served, but the notice of withdrawal states that subsection (3) applies.

(3) If an enforcement notice is withdrawn and this subsection applies,—

(a) after the withdrawal no penalty notice may be served under section 21 in respect of any non-compliance with the enforcement notice before it was withdrawn;

(b) if any penalty notice was so served before the withdrawal, it ceases to have effect and any appeal against it must be dismissed;

(c) any sum paid or recovered in respect of any such penalty notice must be repaid to the employer with interest at the appropriate rate running from the date when the sum was paid or recovered;

(d) any appeal against the enforcement notice must be dismissed;

(e) after the withdrawal no complaint may be presented or other civil proceedings commenced by virtue of section 20 in reliance on any non-compliance with the enforcement notice before it was withdrawn;

(f) any complaint or proceedings so presented or commenced before the withdrawal may be proceeded with despite the withdrawal.

(4) In subsection (3)(c) “the appropriate rate” means the rate that, on the date the sum was paid or recovered, was specified in section 17 of the Judgments Act 1838.

(5) Where subsection (3) applies the notice of withdrawal must indicate the effect of that subsection (but a failure to do so does not make the withdrawal ineffective).

(6) Section 21(6) has effect subject to this section and sections 22B and 22C.

Textual Amendments

F15 Ss. 22A-22F inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 46(1), 59(3); S.I. 2005/872, art. 4, Sch. (with art. 15)

22B Replacement of enforcement notice U.K.

(1) This section applies if an officer withdraws an enforcement notice.

(2) The officer may at the same time as he serves the notice of withdrawal (and if he is of the opinion mentioned in section 19(1) or (2A)) serve on the employer a new enforcement notice under section 19 relating to some or all of the workers to whom the old enforcement notice related.

(3) The new enforcement notice may not relate to any workers to whom the old enforcement notice did not relate (but this is without prejudice to any power that arises apart from this section to serve an enforcement notice relating to those workers).

(4) If the new enforcement notice contravenes subsection (3)—

(a) the case shall be treated as falling within paragraph (b) (or, if none of the workers included in the old enforcement notice is included in the new enforcement notice, paragraph (a)) of section 19(6); and

(b) the new enforcement notice is not to be treated for the purposes of sections 22A(2), 22C(1) and 22D(1) as served in accordance with this section.

(5) If the new enforcement notice includes a requirement under section 19(2) as respects a worker, it must relate to the sum due to the worker under section 17 in respect of the employer’s failure previous to the new notice to remunerate the worker as mentioned in section 19(2) (regardless of whether that failure occurred to any extent before or after the service of the old notice).

(6) Subsection (5) is subject to section 19(2B) to (2D) as they apply in relation to the new enforcement notice; but section 19(2B) applies in relation to that notice as if the reference to 6 years before the date on which the notice is served were a reference to 6 years before the date on which the old notice was served.

(7) The new enforcement notice must—

(a) indicate the differences between it and the old enforcement notice that it is reasonable for the officer to consider are material; and

(b) unless the notice of withdrawal states that section 22A(3) applies, indicate the effect of sections 22C and 22D.

(8) A failure to comply with subsection (7) does not make the new enforcement notice ineffective, but a notice that does not comply with that subsection is not to be treated for the purposes of sections 22A(2), 22C(1) and 22D(1) as served in accordance with this section.

(9) The reference in subsection (1) to an enforcement notice does not include an enforcement notice served by virtue of this section.

Textual Amendments

F15 Ss. 22A-22F inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 46(1), 59(3); S.I. 2005/872, art. 4, Sch. (with art. 15)

22C Effect of replacement on penalties where section 22A(3) not applied U.K.

(1) If an enforcement notice is withdrawn and a new enforcement notice is served in accordance with section 22B, this section applies unless the notice withdrawing the old enforcement notice states that section 22A(3) applies.

(2) Where this section applies, subject to subsections (3) and (5) the withdrawal of the old enforcement notice does not affect—

(a) any penalty notice that before the withdrawal was served under section 21 in respect of any non-compliance with the old enforcement notice;

(b) the power under section 21 to serve a penalty notice in respect of any non-compliance with the old enforcement notice before it was withdrawn.

(3) If—

(a) before the withdrawal of the old enforcement notice a penalty notice was served which included an amount for a day’s non-compliance with the old enforcement notice as respects a worker, and

(b) that amount could not validly have been included in the penalty notice if the old enforcement notice had been as it should have been according to the new enforcement notice,

the penalty notice shall be treated as withdrawn under section 22E at the same time as the old enforcement notice is withdrawn.

(4) Where subsection (3) applies, section 22F (power to replace penalty notice) applies—

(a) as if the cases mentioned in section 22F(1) as cases in which that section applies included the case where a penalty notice is by virtue of this section treated as withdrawn; and

(b) as if the references in section 22F(2) to the amount and particulars that the officer considers should have been stated in the penalty notice were to the amount and particulars that he considers should have been so stated if the old enforcement notice had been as it should have been.

(5) A penalty notice served by virtue of subsection (2)(b) must not include an amount for a day’s non-compliance with the old enforcement notice as respects a worker if, had the old enforcement notice been as it should have been according to the new enforcement notice, that amount could not validly have been included in the penalty notice.

(6) The words after paragraph (c) in section 22(3) shall not apply for the purposes of any appeal against a penalty notice continued in effect by virtue of subsection (2)(a) above or served by virtue of subsection (2)(b) above.

Textual Amendments

F15 Ss. 22A-22F inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 46(1), 59(3); S.I. 2005/872, art. 4, Sch. (with art. 15)

22D Effect of replacement on appeals and civil proceedings where section 22A(3) not applied U.K.

(1) If an enforcement notice is withdrawn and a new enforcement notice is served in accordance with section 22B, this section applies unless the notice withdrawing the old enforcement notice states that section 22A(3) applies.

(2) If an appeal has been made under section 19(4) against the old enforcement notice and the appeal has not been withdrawn or finally determined before the time when that notice is withdrawn—

(a) that appeal (“the earlier appeal”) shall have effect after that time as if it were against the new enforcement notice; and

(b) the employer may exercise his right of appeal under section 19(4) against the new enforcement notice only if he withdraws the earlier appeal.

(3) If an appeal is made under section 19(4) against the new enforcement notice (or by virtue of subsection (2) above has effect as if so made), section 19(9) and paragraphs (a) to (c) of section 21(7) apply in relation to any penalty notice—

(a) continued in effect by virtue of section 22C(2)(a), or

(b) served by virtue of section 22C(2)(b),

as they apply in relation to penalty notices served in respect of the new enforcement notice.

(4) Where this section applies—

(a) after the withdrawal of the old enforcement notice no complaint may be presented or other civil proceedings commenced by virtue of section 20 in reliance on any non-compliance with that notice before it was withdrawn;

(b) any complaint or proceedings so presented or commenced before the withdrawal of the old enforcement notice may be proceeded with despite the withdrawal and replacement of that notice.

Textual Amendments

F15 Ss. 22A-22F inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 46(1), 59(3); S.I. 2005/872, art. 4, Sch. (with art. 15)

22E Withdrawal of penalty notice U.K.

(1) Where a penalty notice has been served on a person (“the employer”) (and has not already been withdrawn or rescinded), an officer acting for the purposes of this Act may withdraw the penalty notice if he is of the opinion—

(a) that, in the case of each of the allegations of failure to comply with the enforcement notice in respect of which the penalty notice was served, the facts are such that an officer who was aware of them would have had no reason to serve any penalty notice on the employer; or

(b) that the amount of the financial penalty is too great because the penalty notice is incorrect in some of the particulars which affect that amount; or

(c) that the amount of the financial penalty is too great because its calculation is incorrect.

(2) The withdrawal shall be effected by serving notice of the withdrawal on the employer.

(3) If a penalty notice is withdrawn and is not replaced under section 22F—

(a) any sum already paid or recovered in respect of the penalty notice must be repaid to the employer with interest at the appropriate rate running from the date when the sum was paid or recovered;

(b) any appeal against the notice must be dismissed.

(4) In subsection (3)(a) “the appropriate rate” means the rate that, on the date the sum was paid or recovered, was specified in section 17 of the Judgments Act 1838.

Textual Amendments

F15 Ss. 22A-22F inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 46(1), 59(3); S.I. 2005/872, art. 4, Sch. (with art. 15)

22F Replacement of penalty notice with notice imposing lower penalty U.K.

(1) This section applies if a penalty notice is withdrawn because the officer is of the opinion mentioned in section 22E(1)(b) or (c).

(2) The officer may, at the same time as that notice is withdrawn, serve by way of replacement a new penalty notice under section 21 in which—

(a) the amount of the financial penalty is the amount (which must be less than that in the old penalty notice) that the officer now considers should have been the amount stated in the old penalty notice; and

(b) the particulars stated under section 21(2)(c) to (e) are as he now considers they should have been in that notice.

(3) The new penalty notice must indicate—

(a) the differences between it and the old penalty notice that it is reasonable for the officer to consider are material, and

(b) the effect of subsections (4) to (7),

but a failure to comply with this subsection does not make the new penalty notice ineffective.

(4) If a sum was paid or recovered in respect of the old penalty notice—

(a) an amount equal to that sum (or, if more than one, the total of those sums) shall be treated as having been paid in respect of the new penalty notice; and

(b) any amount by which that sum (or total) exceeds the amount payable under the new penalty notice must be repaid to the employer with interest at the appropriate rate running from the date when the sum (or, if more than one, the first of them) was paid or recovered.

(5) In subsection (4)(b) “the appropriate rate” means the rate that, on the date mentioned in subsection (4)(b), was specified in section 17 of the Judgments Act 1838.

(6) Subsection (7) applies where—

(a) a new penalty notice is served by virtue of this section; and

(b) an appeal has been made under section 22(1) against the old penalty notice and has not been withdrawn or finally determined before the time when that notice is withdrawn.

(7) In such a case—

(a) that appeal (“the earlier appeal”) shall have effect after that time as if it were against the new penalty notice; and

(b) the employer may exercise his right of appeal under section 22 against the new penalty notice only if he withdraws the earlier appeal.

(8) The reference in subsection (1) to a penalty notice does not include a penalty notice served by virtue of this section.

(9) This section is without prejudice to any power arising apart from this section to serve two or more penalty notices in respect of the same enforcement notice.]

Textual Amendments

F15 Ss. 22A-22F inserted (6.4.2005) by Employment Relations Act 2004 (c. 24), ss. 46(1), 59(3); S.I. 2005/872, art. 4, Sch. (with art. 15)

Rights not to suffer unfair dismissal or other detriment U.K.

23 The right not to suffer detriment. U.K.

(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.

[F16 (4) This section does not apply where the detriment in question amounts to dismissal within the meaning of—

(a) Part X of the Employment Rights Act 1996 (unfair dismissal), or

(b) Part XI of the Employment Rights (Northern Ireland) Order 1996 (corresponding provision for Northern Ireland),

F17 . . ..]

Textual Amendments

F16 S. 23(4) substituted (25.10.1999) by 1999 c. 26, s. 18(4); S.I. 1999/2830, art. 2(1)(2), Sch. 1

F17 Words in s. 23(4) repealed (1.12.1999) by S.I. 1999/2790 (N.I. 9), arts. 1(2), 20(5), Sch. 9(3); S.R. 1999/470, art. 2(3), Sch. 2 Pt. I(subject to exceptions as mentioned in the Sch.)

Modifications etc. (not altering text)

C25 S. 23 modified (prosp.) by 1948 c.47, s. 3A(1)-(4) (as inserted by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36))

S. 23 modified (prosp.) by 1949 c. 30, s. 3A(1)-(3) (as inserted by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36))

C26 S. 23 extended (with modifications) (prosp.) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36))

24 Enforcement of the right. U.K.

(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 M16 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 M17 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 M18 Employment Rights Act 1996 or Article 72 of the M19 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 M20 Employment Rights Act 1996 or Article 153 of the M21 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 M22 Employment Rights Act 1996, or

(b) in relation to Northern Ireland, the M23 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).

Modifications etc. (not altering text)

C27 S. 24 modified (prosp.) by 1948 c.47, s. 3A(1)-(4) (as inserted by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36))

S. 24 modified (prosp.) by 1949 c. 30, s. 3A(1)-(3) (as inserted by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36))

C28 S. 24 extended (with modifications) (prosp.) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36))

Marginal Citations

M16 1996 c. 18.

M17 S.I. 1996/1919 (N.I.16).

M18 1996 c. 18.

M19 S.I. 1996/1919 (N.I.16).

M20 1996 c. 18.

M21 S.I. 1996/1919 (N.I.16).

M22 1996 c. 18.

M23 S.I. 1996/1919 (N.I.16).

25 Right of employee not to be unfairly dismissed: Great Britain. U.K.

(1) After section 104 of the M24 Employment Rights Act 1996 (assertion of statutory right) there shall be inserted—

“104A The national minimum wage.

(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.

(2) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above—

(a) whether or not the employee 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 the National Minimum Wage Act 1998 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 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration).”

(2) In section 105 of that Act (redundancy as unfair dismissal) in subsection (1)(c) (which refers to any of subsections (2) to (7) of that section applying) for “(7)” there shall be substituted “ (7A) ” and after subsection (7) there shall be inserted—

“(7A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104A (read with subsection (2) of that section).”

(3) In section 108 of that Act (exclusion of right: qualifying period of employment) in subsection (3) (cases where no qualifying period is required) the word “or” at the end of paragraph (g) shall be omitted and after that paragraph there shall be inserted—

“(gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, or”.

(4) In section 109 of that Act (exclusion of right: upper age limit) in subsection (2) (cases where upper age limit does not apply) the word “or” at the end of paragraph (g) shall be omitted and after that paragraph there shall be inserted—

“(gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, or”.

Marginal Citations

M24 1996 c. 18.

26 Right of employee not to be unfairly dismissed: Northern Ireland. U.K.

(1) After Article 135 of the M25 Employment Rights (Northern Ireland) Order 1996 (assertion of statutory right) there shall be inserted—

“135A The national minimum wage.

(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 Article 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 Article 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.

(2) It is immaterial for the purposes of sub-paragraph (a) or (b) of paragraph (1)—

(a) whether or not the employee has the right, or

(b) whether or not the right has been infringed;

but, for that paragraph 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 Article applies—

(a) any right conferred by, or by virtue of, any provision of the National Minimum Wage Act 1998 for which the remedy for its infringement is by way of a complaint to an industrial tribunal, and

(b) any right conferred by section 17 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration).”

(2) In Article 137 of that Order (redundancy as unfair dismissal) after paragraph (6) there shall be inserted—

“(6A) This paragraph applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in paragraph (1) of Article 135A (read with paragraph (2) of that Article).”

(3) In Article 140 of that Order (exclusion of right: qualifying period of employment) in paragraph (3) (cases where no qualifying period is required) after sub-paragraph (f) there shall be inserted—

“(ff) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies,”.

(4) In Article 141 of that Order (exclusion of right: upper age limit) in paragraph (2) (cases where upper age limit does not apply) after sub-paragraph (f) there shall be inserted—

“(ff) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies,”.

F18 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F18 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F18 S. 26(5)(6) repealed (29.11.1998) by S.R. 1998/372, art. 2

Commencement Information

I7 S. 26 partly in force; s. 26(6) in force for certain purposes at Royal Assent see s. 56(2); s. 26(1)-(4) in force at 1.11.1998 by S.I. 1998/2574, art. 2(1), Sch. 1 (with art. 3(2))

Marginal Citations

M25 S.I. 1996/1919 (N.I.16).

Civil procedure, evidence and appeals U.K.

27 Tribunal hearings etc by chairman alone. U.K.

(1) In section 4 of the M26 Employment Tribunals Act 1996 (composition of employment tribunal) in subsection (3) (which specifies proceedings to be heard by the chairman alone) after paragraph (ca) there shall be inserted—

“(cc) proceedings on a complaint under section 11 of the National Minimum Wage Act 1998;

(cd) proceedings on an appeal under section 19 or 22 of the National Minimum Wage Act 1998;”.

(2) In Article 6 of the M27 Industrial Tribunals (Northern Ireland) Order 1996 (composition of industrial tribunal in Northern Ireland) in paragraph (3) (which specifies proceedings to be heard by the chairman alone) after sub-paragraph (b) there shall be inserted—

“(bb) proceedings on a complaint under section 11 of the National Minimum Wage Act 1998;

(bc) proceedings on an appeal under section 19 or 22 of the National Minimum Wage Act 1998;”.

Marginal Citations

M26 1996 c. 17.

M27 S.I. 1996/1921 (N.I.18).

28 Reversal of burden of proof. U.K.

(1) Where in any civil proceedings any question arises as to whether an individual qualifies or qualified at any time for the national minimum wage, it shall be presumed that the individual qualifies or, as the case may be, qualified at that time for the national minimum wage unless the contrary is established.

(2) Where—

(a) a complaint is made—

(i) to an employment tribunal under section 23(1)(a) of the M28 Employment Rights Act 1996 (unauthorised deductions from wages), or

(ii) to an industrial tribunal under Article 55(1)(a) of the M29 Employment Rights (Northern Ireland) Order 1996, and

(b) the complaint relates in whole or in part to the deduction of the amount described as additional remuneration in section 17(1) above,

it shall be presumed for the purposes of the complaint, so far as relating to the deduction of that amount, that the worker in question was remunerated at a rate less than the national minimum wage unless the contrary is established.

(3) Where in any civil proceedings a person seeks to recover on a claim in contract the amount described as additional remuneration in section 17(1) above, it shall be presumed for the purposes of the proceedings, so far as relating to that amount, that the worker in question was remunerated at a rate less than the national minimum wage unless the contrary is established.

Modifications etc. (not altering text)

C29 S. 28 modified (prosp.) by 1948 c.47, s. 3A(1)-(4) (as inserted by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36))

S. 28 modified (prosp.) by 1949 c. 30, s. 3A(1)-(3) (as inserted by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36))

C30 S. 28 extended (with modifications) (prosp.) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36))

Marginal Citations

M28 1996 c. 18.

M29 S.I. 1996/1919 (N.I.16).

29 Appeals to the Employment Appeal Tribunal. U.K.

In section 21(1) of the M30 Employment Tribunals Act 1996 (appeal from employment tribunal to Employment Appeal Tribunal on question of law arising under or by virtue of the enactments there specified) after paragraph (f) there shall be inserted—

“(ff) the National Minimum Wage Act 1998, or”.

Marginal Citations

M30 1996 c. 17.

Conciliation U.K.

30 Conciliation. U.K.

(1) In section 18 of the M31 Employment Tribunals Act 1996 (conciliation) in subsection (1) (which specifies the proceedings and claims to which the section applies) after paragraph (d) there shall be inserted—

“(dd) under or by virtue of section 11, 18, 20(1)(a) or 24 of the National Minimum Wage Act 1998;”.

(2) In Article 20 of the M32 Industrial Tribunals (Northern Ireland) Order 1996 (conciliation) in paragraph (1) (which specifies the proceedings and claims to which the Article applies) after sub-paragraph (c) there shall be inserted—

“(cc) under or by virtue of section 11, 18, 20(1)(b) or 24 of the National Minimum Wage Act 1998;”.

Commencement Information

I8 S. 30 wholly in force at 1.4.1999; s. 30 not in force at Royal Assent see s. 56(2); s. 30 in force for certain purposes at 1.11.1998 by 1998/2574, art. 2(1), Sch. 1 and wholly in force at 1.4.1999 by S.I. 1998/2574, art. 2(2), Sch. 2

Marginal Citations

M31 1996 c. 17.

M32 S.I. 1996/1921 (N.I.18).

Offences U.K.

31 Offences. U.K.

(1) If the employer of a worker who qualifies for the national minimum wage refuses or wilfully neglects to remunerate the worker for any pay reference period at a rate which is at least equal to the national minimum wage, that employer is guilty of an offence.

(2) If a person who is required to keep or preserve any record in accordance with regulations under section 9 above fails to do so, that person is guilty of an offence.

(3) If a person makes, or knowingly causes or allows to be made, in a record required to be kept in accordance with regulations under section 9 above any entry which he knows to be false in a material particular, that person is guilty of an offence.

(4) If a person, for purposes connected with the provisions of this Act, produces or furnishes, or knowingly causes or allows to be produced or furnished, any record or information which he knows to be false in a material particular, that person is guilty of an offence.

(5) If a person—

(a) intentionally delays or obstructs an officer acting for the purposes of this Act in the exercise of any power conferred by this Act, or

(b) refuses or neglects to answer any question, furnish any information or produce any document when required to do so under section 14(1) above,

that person is guilty of an offence.

(6) Where the commission by any person of an offence under subsection (1) or (2) above is due to the act or default of some other person, that other person is also guilty of the offence.

(7) A person may be charged with and convicted of an offence by virtue of subsection (6) above whether or not proceedings are taken against any other person.

(8) In any proceedings for an offence under subsection (1) or (2) above it shall be a defence for the person charged to prove that he exercised all due diligence and took all reasonable precautions to secure that the provisions of this Act, and of any relevant regulations made under it, were complied with by himself and by any person under his control.

(9) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Modifications etc. (not altering text)

C31 S. 31 modified by 1948 c. 47, s. 3A(1)-(4) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36); S.I. 1999/685, art. 2, Sch.)

S. 31 modified by 1949 c. 30, s. 3A(1)-(3) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36); S.I. 1999/685, art. 2, Sch.)

C32 S. 31 extended (with modifications) by S.I. 1977/2151 (N.I. 22), art. 8A (as inserted by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36); S.I. 1999/685, art. 2, Sch.)

32 Offences by bodies corporate etc. U.K.

(1) This section applies to any offence under this Act.

(2) If an offence committed by a body corporate is proved—

(a) to have been committed with the consent or connivance of an officer of the body, or

(b) to be attributable to any neglect on the part of such an officer,

the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(3) In subsection (2) above “officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.

(4) If the affairs of a body corporate are managed by its members, subsection (2) above applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(5) If an offence committed by a partnership in Scotland is proved—

(a) to have been committed with the consent or connivance of a partner, or

(b) to be attributable to any neglect on the part of a partner,

the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.

(6) In subsection (5) above, “partner” includes a person purporting to act as a partner.

Modifications etc. (not altering text)

C33 S. 32 modified (prosp.) by 1948 c. 47, s. 3A(1)-(4) (as inserted by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36))

S. 32 modified (prosp.) by 1949 c. 30, s. 3A(1)-(3) (as inserted by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36))

C34 S. 32 extended (with modifications) (prosp.) by S.I. 1977/2151 (N.I. 22), art. 8A (as inserted by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36))

33 Proceedings for offences. U.K.

(1) The persons who may conduct proceedings for an offence under this Act—

(a) in England and Wales, before a magistrates’ court, or

(b) in Northern Ireland, before a court of summary jurisdiction,

shall include any person authorised for the purpose by the Secretary of State even if that person is not a barrister or solicitor.

(2) In England and Wales or Northern Ireland, proceedings for an offence under this Act may be begun at any time within whichever of the following periods expires the later, that is to say—

(a) the period of 6 months from the date on which evidence, sufficient in the opinion of the Secretary of State to justify a prosecution for the offence, comes to the knowledge of the Secretary of State, or

(b) the period of 12 months from the commission of the offence,

notwithstanding anything in any other enactment (including an enactment comprised in Northern Ireland legislation) or in any instrument made under an enactment.

(3) For the purposes of subsection (2) above, a certificate purporting to be signed by or on behalf of the Secretary of State as to the date on which such evidence as is mentioned in paragraph (a) of that subsection came to the knowledge of the Secretary of State shall be conclusive evidence of that date.

(4) In Scotland, proceedings for an offence under this Act may, notwithstanding anything in section 136 of the M33 Criminal Procedure (Scotland) Act 1995, be commenced at any time within—

(a) the period of 6 months from the date on which evidence, sufficient in the opinion of the procurator fiscal to justify proceedings, comes to the knowledge of the procurator fiscal, or

(b) the period of 12 months from the commission of the offence,

whichever period expires the later.

(5) For the purposes of subsection (4) above—

(a) a certificate purporting to be signed by or on behalf of the procurator fiscal as to the date on which such evidence as is mentioned above came to the knowledge of the procurator fiscal shall be conclusive evidence of that date; and

(b) subsection (3) of section 136 of the said Act of 1995 (date of commencement of proceedings) shall have effect as it has effect for the purposes of that section.

Modifications etc. (not altering text)

C35 S. 33 modified by 1948 c. 47, s. 3A(1)-(4) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36); S.I. 1999/685, art. 2, Sch.)

C36 S. 33 extended (with modifications) by S.I. 1977/2151 (N.I. 22), art. 8A (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36); S.I. 1999/685, art. 2, Sch.)

C37 S. 33(4)(5) modified by 1949 c.30 s. 3A(1)-(3) (as inserted (1.4.1999)by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36); S.I. 1999/685, art. 2, Sch.)

Marginal Citations

M33 1995 c. 46.

Special classes of person U.K.

34 Agency workers who are not otherwise “workers”. U.K.

(1) This section applies in any case where an individual (“the agency worker”)—

(a) is supplied by a person (“the agent”) to do work for another (“the principal”) under a contract or other arrangements made between the agent and the principal; but

(b) is not, as respects that work, a worker, because of the absence of a worker’s contract between the individual and the agent or the principal; and

(c) is not a party to a contract under which he undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.

(2) In a case where this section applies, the other provisions of this Act shall have effect as if there were a worker’s contract for the doing of the work by the agency worker made between the agency worker and—

(a) whichever of the agent and the principal is responsible for paying the agency worker in respect of the work; or

(b) if neither the agent nor the principal is so responsible, whichever of them pays the agency worker in respect of the work.

Modifications etc. (not altering text)

C38 S. 34(1) applied (E.W.N.I.) (11.11.1999) by 1999 c. 31, s. 6(4)(c) (with s. 10(2)(3))

35 Home workers who are not otherwise “workers”. U.K.

(1) In determining for the purposes of this Act whether a home worker is or is not a worker, section 54(3)(b) below shall have effect as if for the word “personally” there were substituted “ (whether personally or otherwise) ”.

(2) In this section “home worker” means an individual who contracts with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person.

Modifications etc. (not altering text)

C39 S. 35(2) applied (E.W.N.I.) (11.11.1999) by 1999 c. 31, s. 6(4)(b) (with s. 10(2)(3))

36 Crown employment. U.K.

(1) Subject to section 37 below, the provisions of this Act have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other workers.

(2) In this Act, subject to section 37 below, “Crown employment” means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by statutory provision.

(3) For the purposes of the application of the other provisions of this Act in relation to Crown employment in accordance with subsection (1) above—

(a) references to an employee or a worker shall be construed as references to a person in Crown employment;

(b) references to a contract of employment or a worker’s contract shall be construed as references to the terms of employment of a person in Crown employment; and

(c) references to dismissal, or to the termination of a worker’s contract, shall be construed as references to the termination of Crown employment.

37 Armed forces. U.K.

(1) A person serving as a member of the naval, military or air forces of the Crown does not qualify for the national minimum wage in respect of that service.

(2) Section 36 above applies to employment by an association established for the purposes of Part XI of the M34 Reserve Forces Act 1996, notwithstanding anything in subsection (1) above.

Modifications etc. (not altering text)

C40 S. 37: transfer of certain functions (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

Marginal Citations

M34 1996 c. 14.

38 House of Lords staff. U.K.

(1) Apart from section 21 above, the provisions of this Act have effect in relation to employment as a relevant member of the House of Lords staff as they have effect in relation to other employment.

(2) Nothing in any rule of law or the law or practice of Parliament prevents a relevant member of the House of Lords staff from bringing before the High Court or a county court any claim under this Act.

(3) In this section “relevant member of the House of Lords staff” means any person who is employed under a worker’s contract with the Corporate Officer of the House of Lords.

39 House of Commons staff. U.K.

(1) Apart from section 21 above, the provisions of this Act have effect in relation to employment as a relevant member of the House of Commons staff as they have effect in relation to other employment.

(2) Nothing in any rule of law or the law or practice of Parliament prevents a relevant member of the House of Commons staff from bringing before the High Court or a county court any claim under this Act.

(3) In this section “relevant member of the House of Commons staff” means any person—

(a) who was appointed by the House of Commons Commission; or

(b) who is a member of the Speaker’s personal staff.

40 Mariners. U.K.

For the purposes of this Act, an individual employed to work on board a ship registered in the United Kingdom under Part II of the M35 Merchant Shipping Act 1995 shall be treated as an individual who under his contract ordinarily works in the United Kingdom unless—

(a) the employment is wholly outside the United Kingdom; or

(b) the person is not ordinarily resident in the United Kingdom;

and related expressions shall be construed accordingly.

Marginal Citations

M35 1995 c. 21.

Extensions U.K.

41 Power to apply Act to individuals who are not otherwise “workers”. U.K.

The Secretary of State may by regulations make provision for this Act to apply, with or without modifications, as if—

(a) any individual of a prescribed description who would not otherwise be a worker for the purposes of this Act were a worker for those purposes;

(b) there were in the case of any such individual a worker’s contract of a prescribed description under which the individual works; and

(c) a person of a prescribed description were the employer under that contract.

Commencement Information

I9 S. 41 partly in force; s. 41 in force for certain purposes at Royal Assent see s. 56(2)

42 Power to apply Act to offshore employment. U.K.

(1) In this section “offshore employment” means employment for the purposes of activities—

(a) in the territorial waters of the United Kingdom, or

(b) connected with the exploration of the sea-bed or subsoil, or the exploitation of their natural resources, in the United Kingdom sector of the continental shelf, or

(c) connected with the exploration or exploitation, in a foreign sector of the continental shelf, of a cross-boundary petroleum field.

(2) Her Majesty may by Order in Council provide that the provisions of this Act apply, to such extent and for such purposes as may be specified in the Order (with or without modification), to or in relation to a person in offshore employment.

(3) An Order in Council under this section—

(a) may provide that all or any of the provisions of this Act, as applied by such an Order in Council, apply—

(i) to individuals whether or not they are British subjects, and

(ii) to bodies corporate whether or not they are incorporated under the law of a part of the United Kingdom,

and apply even where the application may affect their activities outside the United Kingdom,

(b) may make provision for conferring jurisdiction on any court or class of court specified in the Order in Council, or on employment tribunals, in respect of offences, causes of action or other matters arising in connection with offshore employment,

(c) may (without prejudice to subsection (2) above) provide that the provisions of this Act, as applied by the Order in Council, apply in relation to any person in employment in a part of the areas referred to in subsection (1)(a) and (b) above,

(d) may exclude from the operation of section 3 of the M36 Territorial Waters Jurisdiction Act 1878 (consents required for prosecutions) proceedings for offences under this Act in connection with offshore employment,

(e) may provide that such proceedings shall not be brought without such consent as may be required by the Order in Council,

(f) may (without prejudice to subsection (2) above) modify or exclude the operation of sections 1(2)(b) and 40 above.

(4) Any jurisdiction conferred on a court or tribunal under this section is without prejudice to jurisdiction exercisable apart from this section by that or any other court or tribunal.

(5) In this section—

• “cross-boundary petroleum field” means a petroleum field that extends across the boundary between the United Kingdom sector of the continental shelf and a foreign sector of the continental shelf,

• “foreign sector of the continental shelf” means an area outside the territorial waters of any state, within which rights with respect to the sea-bed and subsoil and their natural resources are exercisable by a state other than the United Kingdom,

• “petroleum field” means a geological structure identified as an oil or gas field by the Order in Council concerned, and

• “United Kingdom sector of the continental shelf” means the area designated under section 1(7) of the M37 Continental Shelf Act 1964.

Commencement Information

I10 S. 42 partly in force; s. 42(2) in force for certain purposes at Royal Assent see s. 56(2)

Marginal Citations

M36 1878 c. 73.

M37 1964 c. 29.

Exclusions U.K.

43 Share fishermen. U.K.

A person—

(a) employed as master, or as a member of the crew, of a fishing vessel, and

(b) remunerated, in respect of that employment, only by a share in the profits or gross earnings of the vessel,

does not qualify for the national minimum wage in respect of that employment.

44 Voluntary workers. U.K.

(1) A worker employed by a charity, a voluntary organisation, an associated fund-raising body or a statutory body does not qualify for the national minimum wage in respect of that employment if he receives, and under the terms of his employment (apart from this Act) is entitled to,—

(a) no monetary payments of any description, or no monetary payments except in respect of expenses—

(i) actually incurred in the performance of his duties; or

(ii) reasonably estimated as likely to be or to have been so incurred; and

(b) no benefits in kind of any description, or no benefits in kind other than the provision of some or all of his subsistence or of such accommodation as is reasonable in the circumstances of the employment.

(2) A person who would satisfy the conditions in subsection (1) above but for receiving monetary payments made solely for the purpose of providing him with means of subsistence shall be taken to satisfy those conditions if—

(a) he is employed to do the work in question as a result of arrangements made between a charity acting in pursuance of its charitable purposes and the body for which the work is done; and

(b) the work is done for a charity, a voluntary organisation, an associated fund-raising body or a statutory body.

(3) For the purposes of subsection (1)(b) above—

(a) any training (other than that which a person necessarily acquires in the course of doing his work) shall be taken to be a benefit in kind; but

(b) there shall be left out of account any training provided for the sole or main purpose of improving the worker’s ability to perform the work which he has agreed to do.

(4) In this section—

• “associated fund-raising body” means a body of persons the profits of which are applied wholly for the purposes of a charity or voluntary organisation;

• “charity” means a body of persons, or the trustees of a trust, established for charitable purposes only;

• “receive”, in relation to a monetary payment or a benefit in kind, means receive in respect of, or otherwise in connection with, the employment in question (whether or not under the terms of the employment);

• “statutory body” means a body established by or under an enactment (including an enactment comprised in Northern Ireland legislation);

• “subsistence” means such subsistence as is reasonable in the circumstances of the employment in question, and does not include accommodation;

• “voluntary organisation” means a body of persons, or the trustees of a trust, which is established only for charitable purposes (whether or not those purposes are charitable within the meaning of any rule of law), benevolent purposes or philanthropic purposes, but which is not a charity.

[F19 44A Religious and other communities: resident workers. U.K.

(1) A residential member of a community to which this section applies does not qualify for the national minimum wage in respect of employment by the community.

(2) Subject to subsection (3), this section applies to a community if—

(a) it is a charity or is established by a charity,

(b) a purpose of the community is to practise or advance a belief of a religious or similar nature, and

(c) all or some of its members live together for that purpose.

(3) This section does not apply to a community which—

(a) is an independent school, or

(b) provides a course of further or higher education.

(4) The residential members of a community are those who live together as mentioned in subsection (2)(c).

(5) In this section—

(a) “charity” has the same meaning as in section 44, and

(b) “independent school” has the same meaning as in section 463 of the M38 Education Act 1996 (in England and Wales), section 135 of the M39 Education (Scotland) Act 1980 (in Scotland) and Article 2 of the M40 Education and Libraries (Northern Ireland) Order 1986 (in Northern Ireland).

(6) In this section “course of further or higher education” means—

(a) in England and Wales, a course of a description referred to in Schedule 6 to the M41 Education Reform Act 1988 or Schedule 2 to the M42 Further and Higher Education Act 1992;

(b) in Scotland, a course or programme of a description mentioned in or falling within section 6(1) or 38 of the M43 Further and Higher Education (Scotland) Act 1992;

(c) in Northern Ireland, a course of a description referred to in Schedule 1 to the M44 Further Education (Northern Ireland) Order 1997 or a course providing further education within the meaning of Article 3 of that Order.]

Textual Amendments

F19 S. 44A inserted (25.10.1999) by 1999 c. 26, s. 22; S.I. 1999/2830, art. 2(1)(2), Sch. 1 Pt. I

Marginal Citations

M38 1996 c. 56.

M39 1980 c. 44.

M40 S.I. 1986/594 (N.I. 3).

M41 1988 c. 40.

M42 1992 c. 13.

M43 1992 c. 37.

M44 S.I. 1997/1772 (N.I. 15).

45 Prisoners. U.K.

(1) A prisoner does not qualify for the national minimum wage in respect of any work which he does in pursuance of prison rules.

(2) In this section—

• “prisoner” means a person detained in, or on temporary release from, a prison;

• “prison” includes any other institution to which prison rules apply;

• “prison rules” means—

  (a)

  in relation to England and Wales, rules made under section 47 of the M45 Prison Act 1952;

  (b)

  in relation to Scotland, rules made under section 39 of the M46 Prisons (Scotland) Act 1989; and

  (c)

  in relation to Northern Ireland, rules made under section 13 of the M47 Prison Act Northern Ireland) 1953.

Marginal Citations

M45 1952 c. 52.

M46 1989 c. 45.

M47 1953 c. 18 (N.I.).

[F20 45A Persons discharging fines by unpaid work U.K.

A person does not qualify for the national minimum wage in respect of any work that he does in pursuance of a work order under Schedule 6 to the Courts Act 2003 (discharge of fines by unpaid work).]

Textual Amendments

F20 S. 45A inserted (1.4.2005) by Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 382; S.I. 2005/910, art. 3(y)

[F21 45B Immigration: detained persons U.K.

Section 153A of the Immigration and Asylum Act 1999 (c. 33) (persons detained in removal centres) disqualifies certain persons for the national minimum wage.]

Textual Amendments

F21 S. 45B inserted (31.8.2006) by Immigration, Asylum and Nationality Act 2006 (c. 13), ss. 59(2), 62(1)(2); S.I. 2006/2226, art. 3, Sch. 1

Agricultural workers U.K.

46 Relationship of this Act and agricultural wages legislation. U.K.

(1) A person who has been prosecuted for an offence which falls within paragraph (a) or (b) below, that is to say—

(a) an offence under any provision of this Act in its application for the purposes of the agricultural wages legislation, or

(b) an offence under any provision of this Act in its application otherwise than for the purposes of the agricultural wages legislation,

shall not also be liable to be prosecuted for an offence which falls within the other of those paragraphs but which is constituted by the same conduct or alleged conduct for which he was prosecuted.

(2) No amount shall be recoverable both—

(a) under or by virtue of this Act in its application for the purposes of the agricultural wages legislation, and

(b) under or by virtue of this Act in its application otherwise than for those purposes,

in respect of the same work.

(3) Nothing in the agricultural wages legislation, or in any order under that legislation, affects the operation of this Act in its application otherwise than for the purposes of that legislation.

(4) In this section “the agricultural wages legislation” means—

(a) the M48 Agricultural Wages Act 1948;

(b) the M49 Agricultural Wages (Scotland) Act 1949; and

(c) the Agricultural Wages (Regulation) (Northern Ireland) Order 1977.

Marginal Citations

M48 1948 c. 47.

M49 1949 c. 30.

47 Amendments relating to remuneration etc of agricultural workers. U.K.

(1) The following enactments, that is to say—

(a) the M50 Agricultural Wages Act 1948,

(b) the M51 Agricultural Wages (Scotland) Act 1949, and

(c) the M52 Agricultural Wages (Regulation) (Northern Ireland) Order 1977,

shall be amended in accordance with Schedule 2 to this Act.

(2) The appropriate authority may by regulations amend—

(a) the M53 Agricultural Wages Act 1948;

(b) the M54 Agricultural Wages (Scotland) Act 1949;

(c) section 67 of the M55 Agriculture Act 1967 (sick pay);

(d) section 46 of the M56 Agriculture (Miscellaneous Provisions) Act 1968 (further functions of agricultural wages committees); and

(e) the M57 Agricultural Wages (Regulation) (Northern Ireland) Order 1977.

(3) The amendments that may be made under subsection (2) above are any amendments which are consequential on this Act or on regulations under section 1(4), 2 or 3 above.

(4) The appropriate authority may by regulations amend, or make provision in substitution for,—

(a) section 7 of the M58 Agricultural Wages Act 1948 (reckoning of benefits and advantages as payment of wages);

(b) section 7 of the M59 Agricultural Wages (Scotland) Act 1949 (similar provision for Scotland); or

(c) Article 4(3) and (5) of the M60 Agricultural Wages (Regulation) (Northern Ireland) Order 1977.

(5) Subsection (1) above is without prejudice to subsections (2) to (4) above.

(6) In this section “the appropriate authority” means—

(a) in relation to England and Wales, the Secretary of State and the Minister of Agriculture, Fisheries and Food acting jointly;

(b) in relation to Scotland, the Secretary of State;

(c) in relation to Northern Ireland, the Department of Agriculture for Northern Ireland.

Modifications etc. (not altering text)

C41 S. 47: transfer of certain functions (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

Commencement Information

I11 S. 47 wholly in force at 1.4.1999; s. 47(2)(4) in force for certain purposes at Royal Assent see s. 56(2); s. 47 in force at 1.4.1999 insofar as not already in force by S.I. 1999/685, arts. 2, 3, Sch.

Marginal Citations

M50 1948 c. 47.

M51 1949 c. 30.

M52 S.I. 1977/2151 (N.I.22).

M53 1948 c. 47.

M54 1949 c. 30.

M55 1967 c. 22.

M56 1968 c. 34.

M57 S.I. 1977/2151 (N.I.22).

M58 1948 c. 47.

M59 1949 c. 30.

M60 S.I. 1977/2151 (N.I.22).

Miscellaneous U.K.

48 Application of Act to superior employers. U.K.

Where—

(a) the immediate employer of a worker is himself in the employment of some other person, and

(b) the worker is employed on the premises of that other person,

that other person shall be deemed for the purposes of this Act to be the employer of the worker jointly with the immediate employer.

Modifications etc. (not altering text)

C42 S. 48 modified by 1948 c.47, s. 3A(1)-(4) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36); S.I. 1999/685, art. 2, Sch.))

S. 48 modified by 1949 c. 30, s. 3A(1)-(3) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36); S.I. 1999/685, art. 2, Sch.))

C43 S. 48 extended (with modifications) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36); S.I. 1999/685, art. 2, Sch.))

49 Restrictions on contracting out. U.K.

(1) Any provision in any agreement (whether a worker’s contract or not) is void in so far as it purports—

(a) to exclude or limit the operation of any provision of this Act; or

(b) to preclude a person from bringing proceedings under this Act before an employment tribunal.

(2) Subsection (1) above does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under—

(a) section 18 of the M61 Employment Tribunals Act 1996 (conciliation), or

(b) in relation to Northern Ireland, Article 20 of the M62 Industrial Tribunals (Northern Ireland) Order 1996.

(3) Subsection (1) above does not apply to any agreement to refrain from instituting or continuing before an employment tribunal any proceedings within—

(a) section 18(1)(dd) of the M63 Employment Tribunals Act 1996 (proceedings under or by virtue of this Act where conciliation is available), or

(b) in relation to Northern Ireland, Article 20(1)(cc) of the M64 Industrial Tribunals (Northern Ireland) Order 1996,

if the conditions regulating compromise agreements under this Act are satisfied in relation to the agreement.

(4) For the purposes of subsection (3) above the conditions regulating compromise agreements under this Act are that—

(a) the agreement must be in writing,

(b) the agreement must relate to the particular proceedings,

(c) the employee or worker must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an employment tribunal,

(d) there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or a professional body, covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice,

(e) the agreement must identify the adviser, and

(f) the agreement must state that the conditions regulating compromise agreements under this Act are satisfied.

(5) A person is a relevant independent adviser for the purposes of subsection (4)(c) above—

(a) if he is a qualified lawyer,

(b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,

(c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre, or

(d) if he is a person of a description specified in an order made by the Secretary of State.

(6) But a person is not a relevant independent adviser for the purposes of subsection (4)(c) above in relation to the employee or worker—

(a) if he is employed by, or is acting in the matter for, the employer or an associated employer,

(b) in the case of a person within subsection (5)(b) or (c) above, if the trade union or advice centre is the employer or an associated employer,

(c) in the case of a person within subsection (5)(c) above, if the employee or worker makes a payment for the advice received from him, or

(d) in the case of a person of a description specified in an order under subsection (5)(d) above, if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.

(7) In this section “qualified lawyer” means—

(a) as respects England and Wales—

(i) a barrister (whether in practice as such or employed to give legal advice);

(ii) a solicitor who holds a practising certificate; or

(iii) a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the M65 Courts and Legal Services Act 1990);

(b) as respects Scotland—

(i) an advocate (whether in practice as such or employed to give legal advice); or

(ii) a solicitor who holds a practising certificate; and

(c) as respects Northern Ireland—

(i) a barrister (whether in practice as such or employed to give legal advice); or

(ii) a solicitor who holds a practising certificate.

(8) For the purposes of this section any two employers shall be treated as associated if—

(a) one is a company of which the other (directly or indirectly) has control; or

(b) both are companies of which a third person (directly or indirectly) has control;

and “associated employer” shall be construed accordingly.

(9) In the application of this section in relation to Northern Ireland—

(a) subsection (4)(c) above shall have effect as if for “advice from a relevant independent adviser” there were substituted “ independent legal advice from a qualified lawyer ”; and

(b) subsection (4)(d) above shall have effect as if for “contract of insurance, or an indemnity provided for members of a profession or a professional body,” there were substituted “ policy of insurance ”.

(10) In subsection (4) above, as it has effect by virtue of subsection (9) above, “independent”, in relation to legal advice received by an employee or worker, means that the advice is given by a lawyer who is not acting in the matter for the employer or an associated employer.

(11) The Secretary of State may by order repeal subsections (9) and (10) above and this subsection.

Modifications etc. (not altering text)

C44 S. 49 modified by 1948 c.47, s. 3A(1)-(4) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(a), 56(2), Sch. 2 Pt. I, para. 3 (with s. 36); S.I. 1999/685, art. 2, Sch.)

S. 49 modified by 1949 c. 30, s. 3A(1)-(3) (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(b), 56(2), Sch. 2 Pt. II, para. 13 (with s. 36); S.I. 1999/685, art. 2, Sch.)

C45 S. 49 extended (with modifications) by S.I. 1997/2151 (N.I. 22), art. 8A (as inserted (1.4.1999) by 1998 c. 39, ss. 47(1)(c), 56(2), Sch. 2 Pt. III, para. 26 (with s. 36); S.I. 1999/685, art. 2, Sch.)

Commencement Information

I12 S. 49 partly in force; s. 49(11) in force at Royal Assent see s. 56(2); s. 49(1)-(8) in force at 1.11.1998 by S.I. 1998/2574, art. 2(1), Sch. 1

Marginal Citations

M61 1996 c. 17.

M62 S.I. 1996/1921 (N.I.18).

M63 1996 c. 17.

M64 S.I. 1996/1921 (N.I.18).

M65 1990 c. 41.

50 Publicity. U.K.

(1) The Secretary of State shall arrange for information about this Act and regulations under it to be published by such means as appear to the Secretary of State to be most appropriate for drawing the provisions of this Act and those regulations to the attention of persons affected by them.

(2) The information required to be published under subsection (1) above includes, in particular, information about—

(a) the hourly rate for the time being prescribed under section 1 above;

(b) the method or methods to be used for determining under section 2 above the hourly rate at which a person is to be regarded for the purposes of this Act as remunerated by his employer in respect of his work in any pay reference period;

(c) the methods of enforcing rights under this Act; and

(d) the persons to whom section 3 above applies and the provision made in relation to them by regulations under that section.

Supplementary U.K.

51 Regulations and orders. U.K.

(1) Except to the extent that this Act makes provision to the contrary, any power conferred by this Act to make an Order in Council, regulations or an order includes power—

(a) to make different provision for different cases or for different descriptions of person; and

(b) to make incidental, consequential, supplemental or transitional provision and savings.

(2) Paragraph (a) of subsection (1) above does not have effect in relation to regulations under section 1(3) above or an order under section 49 above.

(3) No recommendation shall be made to Her Majesty to make an Order in Council under any provision of this Act unless a draft of the Order in Council has been laid before Parliament and approved by a resolution of each House of Parliament.

(4) Any power of a Minister of the Crown to make regulations or an order under this Act shall be exercisable by statutory instrument.

(5) A statutory instrument containing (whether alone or with other provisions) regulations under this Act shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(6) Subsection (5) above shall not have effect in relation to a statutory instrument if the only regulations under this Act which the instrument contains are regulations under section 21 or 47(2) or (4) above.

(7) A statutory instrument—

(a) which contains (whether alone or with other provisions) any regulations under section 21 or 47(2) or (4) above or an order under section 49 above, and

(b) which is not subject to any requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament,

shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(8) The power—

(a) of the Department of Economic Development to make an order under section 26(6) above, or

(b) of the Department of Agriculture for Northern Ireland to make regulations under section 47 above,

shall be exercisable by statutory rule for the purposes of the M66 Statutory Rules (Northern Ireland) Order 1979; and any such order or regulations shall be subject to negative resolution within the meaning of section 41(6) of the M67 Interpretation Act Northern Ireland) 1954.

Subordinate Legislation Made

P1 Power conferred by s. 51(1)(b) exercised, 1.4.1999 appointed by S.I. 1999/685, art. 2, Sch.

Commencement Information

I13 S. 51 in force at Royal Assent in accordance with s. 52(6)

Marginal Citations

M66 S.I. 1979/1573 (N.I.12).

M67 1954 c. 33 (N.I.).

52 Expenses. U.K.

There shall be paid out of money provided by Parliament—

(a) any expenditure incurred under this Act by a Minister of the Crown or government department or by a body performing functions on behalf of the Crown; and

(b) any increase attributable to the provisions of this Act in the sums payable out of such money under any other Act.

53 Repeals and revocations. U.K.

The enactments mentioned in Schedule 3 to this Act are repealed, and the instruments mentioned in that Schedule are revoked, to the extent specified in the third column of that Schedule.

Commencement Information

I14 S. 53 partly in force; s. 53 not in force at Royal Assent see s. 56(2), s. 56 in force for certain purposes at 1.11.1998 by S.I. 1998/2574, art. 2(1), Sch. 1; S. 56 in force for certain purposes at 1.4.1999 by S.I. 1999/685, arts. 2, 3, Sch.

54 Meaning of “worker”, “employee” etc. U.K.

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Act “worker” (except in the phrases “agency worker” and “home worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a) a contract of employment; or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly.

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Act “employment”—

(a) in relation to an employee, means employment under a contract of employment; and

(b) in relation to a worker, means employment under his contract;

and “employed” shall be construed accordingly.

Modifications etc. (not altering text)

C46 S. 54 applied (11.11.1999) by 1999 c. 31, s. 6(4)(a) (with s. 10(2)(3))

55 Interpretation. U.K.

(1) In this Act, unless the context otherwise requires,—

• “civil proceedings” means proceedings before an employment tribunal or civil proceedings before any other court;

• “enforcement notice” shall be construed in accordance with section 19 above;

• “government department” includes a Northern Ireland department, except in section 52(a) above;

• “industrial tribunal” means a tribunal established under Article 3 of the M68 Industrial Tribunals (Northern Ireland) Order 1996;

• “notice” means notice in writing;

• “pay reference period” shall be construed in accordance with section 1(4) above;

• “penalty notice” shall be construed in accordance with section 21 above;

• “person who qualifies for the national minimum wage” shall be construed in accordance with section 1(2) above; and related expressions shall be construed accordingly;

• “prescribe” means prescribe by regulations;

• “regulations” means regulations made by the Secretary of State, except in the case of regulations under section 47(2) or (4) above made by the Secretary of State and the Minister of Agriculture, Fisheries and Food acting jointly or by the Department of Agriculture for Northern Ireland.

(2) Any reference in this Act to a person being remunerated for a pay reference period is a reference to the person being remunerated by his employer in respect of his work in that pay reference period.

(3) Any reference in this Act to doing work includes a reference to performing services; and “work” and other related expressions shall be construed accordingly.

(4) For the purposes of this Act, a person ceases to be of compulsory school age in Scotland when he ceases to be of school age in accordance with sections 31 and 33 of the M69 Education (Scotland) Act 1980.

(5) Any reference in this Act to a person ceasing to be of compulsory school age shall, in relation to Northern Ireland, be construed in accordance with Article 46 of the M70 Education and Libraries (Northern Ireland) Order 1986.

(6) Any reference in this Act to an employment tribunal shall, in relation to Northern Ireland, be construed as a reference to an industrial tribunal.

Marginal Citations

M68 S.I. 1996/1921 (N.I.18).

M69 1980 c. 44.

M70 S.I. 1986/755 (N.I.2).

56 Short title, commencement and extent. U.K.

(1) This Act may be cited as the National Minimum Wage Act 1998.

(2) Apart from this section and any powers to make an Order in Council or regulations or an order (which accordingly come into force on the day on which this Act is passed) the provisions of this Act shall come into force on such day or days as the Secretary of State may by order appoint; and different days may be appointed for different purposes.

(3) This Act extends to Northern Ireland.

Subordinate Legislation Made

P2 S. 56(2) power partly exercised (20.10.1998, 1.4.1999): different dates appointed for specified provisions by S.I. 1998/2574, art. 2, Sch. 1, Sch. 2 (with art. 3); S.I. 1999/685, art. 2, Sch.

SCHEDULES

Section 8.

SCHEDULE 1 U.K. The Low Pay Commission

Membership U.K.

1 (1) The Low Pay Commission appointed under section 8(9) of this Act (in this Schedule referred to as “the Commission”) shall consist of a chairman and eight other members appointed by the Secretary of State. U.K.

(2) In appointing members, the Secretary of State shall have regard to the desirability of securing that there is such a balance as the Secretary of State considers appropriate between—

(a) members with knowledge or experience of, or interest in, trade unions or matters relating to workers generally;

(b) members with knowledge or experience of, or interest in, employers’ associations or matters relating to employers generally; and

(c) members with other relevant knowledge or experience.

(3) Members shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.

(4) A member may resign his membership by giving notice to the Secretary of State.

(5) A person who ceases to be a member shall be eligible for re-appointment.

(6) The Secretary of State may by notice to the member concerned remove from office a member who—

(a) has become bankrupt, has made an arrangement with his creditors, has had his estate sequestrated, has granted a trust deed for his creditors or has made a composition contract with his creditors, or

(b) has been absent from two or more consecutive meetings of the Commission otherwise than for a reason approved by them, or

(c) is in the opinion of the Secretary of State unable or unfit to perform his duties as member.

Financial provisions U.K.

2 (1) The Secretary of State may pay the members of the Commission such remuneration, and such allowances in respect of travel or other expenses properly incurred by them, or in respect of loss of remuneration sustained by them, in the performance of their duties, as the Secretary of State may determine. U.K.

(2) The Secretary of State may determine to pay in respect of a person’s office as member of the Commission—

(a) such pension, allowance or gratuity to or in respect of that person on his retirement or death, or

(b) such contributions or other payment towards the provision of such a pension, allowance or gratuity,

as the Secretary of State may determine.

(3) Where a person ceases to be a member of the Commission otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, the Secretary of State may determine to make a payment to him by way of compensation of such amount as the Secretary of State may determine.

Staff, facilities and money U.K.

3 U.K. The Secretary of State shall provide the Commission with—

(a) such staff,

(b) such accommodation, equipment and other facilities, and

(c) such sums,

as the Secretary of State may reasonably determine are required by the Commission for carrying out their duties in preparing any report on matters referred to them under this Act.

Proceedings U.K.

4 (1) The quorum of the Commission and the arrangements relating to their meetings shall be such as the Commission may determine. U.K.

(2) The validity of proceedings of the Commission is not affected by—

(a) any vacancy among the members, whether occurring by reason of death, resignation or otherwise;

(b) the appointment of a member at any time to fill such a vacancy; or

(c) any defect in the appointment of a member.

Disqualification for House of Commons and Northern Ireland Assembly U.K.

5 (1) The entry set out in sub-paragraph (2) below shall be inserted at the appropriate place in— U.K.

(a) Part II of Schedule 1 to the M71 House of Commons Disqualification Act 1975 (offices disqualifying for membership of the House of Commons); and

(b) Part II of Schedule 1 to the M72 Northern Ireland Assembly Disqualification Act 1975 (offices disqualifying for membership of the Northern Ireland Assembly).

(2) The entry is—

“The Low Pay Commission appointed under section 8(9) of the National Minimum Wage Act 1998.”

Marginal Citations

M71 1975 c. 24.

M72 1975 c. 25.

Section 47.

SCHEDULE 2 U.K. Amendments relating to remuneration etc of agricultural workers

Part I U.K. The Agricultural Wages Act 1948

1 U.K. The M73 Agricultural Wages Act 1948 shall be amended in accordance with this Part of this Schedule.

Marginal Citations

M73 1948 c. 47.

Section 3 U.K.

2 (1) Section 3 (power of Agricultural Wages Board to fix minimum rates of wages, holiday pay, etc) shall be amended as follows. U.K.

(2) After subsection (2A) there shall be inserted—

“(2B) No minimum rate fixed under this section which is an hourly rate shall be less than the national minimum wage.

(2C) No minimum rate fixed under this section which is a rate other than an hourly rate shall be such as to yield a less amount of wages for each hour worked than the hourly amount of the national minimum wage.”

(3) After subsection (7) there shall be added—

“(8) If the Board make, or purport to make, an order fixing a minimum rate under this section—

(a) which is an hourly rate but which is lower than the national minimum wage in force when that minimum rate comes into effect, or

(b) which is a rate other than an hourly rate but which is such as to yield a less amount of wages for each hour worked than the hourly amount of the national minimum wage in force when that minimum rate comes into effect,

they shall be taken to have made an order fixing in place of that minimum rate a minimum rate equal to the national minimum wage or, as the case may be, a minimum rate such as to yield an amount of wages for each hour worked equal to the hourly amount of the national minimum wage.

(9) If, at any time after a minimum rate which is an hourly rate comes into effect under this section, the national minimum wage becomes higher than that minimum rate, then, as respects any period beginning at or after that time, the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate equal to the national minimum wage.

(10) If, at any time after a minimum rate other than an hourly rate comes into effect under this section, the national minimum wage is increased to such a level that that minimum rate yields a less amount of wages for each hour worked than the hourly amount of the national minimum wage, then, as respects any period beginning at or after that time, the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate such as to yield an amount of wages for each hour worked equal to the hourly amount of the national minimum wage.

(11) Subsections (8) to (10) of this section are without prejudice to the power of the Board to make further orders under this section fixing any minimum rates.

(12) Where an order under this section fixes any particular minimum rate of wages by reference to two or more component rates, of which—

(a) one is the principal component, and

(b) the other or others are supplemental or additional components,

(as in a case where the minimum rate for night work is fixed as the sum of the minimum rate payable in respect of work other than night work and a supplemental or additional minimum rate in respect of working at night) the national minimum wage provisions of this section apply in relation to the principal component rate and not the supplemental or additional component rates.

(13) The national minimum wage provisions of this section do not apply in relation to any minimum rate which is in the nature of an allowance payable in respect of some particular responsibility or circumstance (as in a case where a minimum rate is fixed in respect of being required to keep a dog).

(14) The national minimum wage provisions of this section do not apply in relation to any minimum rate fixed under this section—

(a) by virtue of subsection (2)(d) of this section, or

(b) by virtue of section 67 of the M74 Agriculture Act 1967 (sick pay),

unless and to the extent that regulations under section 2 of the National Minimum Wage Act 1998 make provision which has the effect that circumstances or periods in respect of which the minimum rate in question is required to be paid to a worker are treated as circumstances in which, or times at which, a person is to be regarded as working.

(15) In this section “the national minimum wage provisions of this section” means subsections (2B), (2C) and (8) to (10) of this section.”

Marginal Citations

M74 1967 c. 22.

Enforcement U.K.

3 U.K. After section 3 there shall be inserted—

“3A Enforcement.

(1) The enforcement provisions of the National Minimum Wage Act 1998 shall have effect for the purposes of this Act as they have effect for the purposes of that Act, but with the modifications specified in subsections (3) and (4) of this section.

(2) In subsection (1) of this section “the enforcement provisions of the National Minimum Wage Act 1998” means the following provisions of that Act—

(a) sections 9 to 11 (records);

(b) section 14 (powers of officers);

(c) sections 17 and 19 to 22 (enforcement of right to national minimum wage);

(d) sections 23 and 24 (right not to suffer detriment);

(e) section 28 (evidence: reversal of burden of proof in civil proceedings);

(f) sections 31 to 33 (offences);

(g) section 48 (superior employers); and

(h) section 49 (restriction on contracting out).

(3) In the application of any provision of the National Minimum Wage Act 1998 by subsection (1) of this section—

(a) any reference to that Act, other than a reference to a specific provision of it, includes a reference to this Act;

(b) any reference to a worker (within the meaning of that Act) shall be taken as a reference to a worker employed in agriculture (within the meaning of this Act);

(c) any reference to a person (however described) who qualifies for the national minimum wage shall be taken as a reference to a worker employed in agriculture;

(d) subject to paragraph (c) of this subsection, any reference to the national minimum wage, other than a reference to the hourly amount of the national minimum wage, shall be taken as a reference to the minimum rate applicable under this Act;

(e) subject to paragraph (c) of this subsection, any reference to qualifying for the national minimum wage shall be taken as a reference to being entitled to the minimum rate applicable under this Act;

(f) any reference to a pay reference period shall be disregarded.

(4) In the application of section 33 of the National Minimum Wage Act 1998 (proceedings for offences) by subsection (1) of this section, any reference to the Secretary of State shall be taken to include a reference to the Minister of Agriculture, Fisheries and Food.

(5) In section 104A of the M75 Employment Rights Act 1996 (unfair dismissal: national minimum wage) in subsection (1)(c)—

(a) any reference to a person qualifying for the national minimum wage includes a reference to a person being or becoming entitled to a minimum rate applicable under this Act; and

(b) any reference to a person qualifying for a particular rate of national minimum wage includes a reference to a person being or becoming entitled to a particular minimum rate applicable under this Act.”

Commencement Information

I15 Sch. 2 para. 3 partly in force; para. 3 not in force at Royal Assent, see s. 56(2); para. 3 (except the specified reference) in force at 1.4.1999 by S.I. 1999/685, art. 2, Sch.

Marginal Citations

M75 1996 c. 18.

Section 4 U.K.

4 F22 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

(2) In consequence of sub-paragraph (1) above, the sidenote to section 4 becomes “Enforcement of holidays orders”.

Textual Amendments

F22 Sch. 2 para. 4(1) repealed (22.7.2004) by Statute Law (Repeals) Act 2004 (c. 14), Sch. 1 Pt. 8

Section 5 U.K.

5 (1) Section 5 (permits to incapacitated persons) shall be amended as follows. U.K.

(2) In subsection (1)—

(a) for “the last preceding section relating to payment of wages at not less than the minimum rate” there shall be substituted “ subsection (1) of section 31 of the National Minimum Wage Act 1998 as it applies for the purposes of this Act (offence of refusing or wilfully neglecting to pay worker at applicable rate) ”; and

(b) for “any legal proceedings under the last preceding section for failing” there shall be substituted “ any legal proceedings under that subsection, as it so applies, for refusing or wilfully neglecting ”.

(3) After subsection (1) there shall be inserted—

“(1A) Every permit under subsection (1) of this section (whenever granted) shall be deemed to contain a condition that the worker to whom it is granted must at any time be paid at a rate which—

(a) in the case of an hourly rate, is not less than the national minimum wage in force at that time; or

(b) in the case of a rate other than an hourly rate, is such as to yield an amount of wages for each hour worked which is not less than the hourly amount of the national minimum wage in force at that time.

(1B) The condition which a permit is deemed to contain by virtue of subsection (1A) of this section—

(a) overrides any other condition which the permit contains as to payment of wages, to the extent that that other condition provides for payment of wages at any time at a lower rate; but

(b) is without prejudice to any other condition which the permit contains as to payment of wages, to the extent that that other condition provides for payment of wages at any time at a higher rate.”

(4) In subsection (2)—

(a) for “the preceding subsection” there shall be substituted “ subsection (1) of this section ”; and

(b) for “any legal proceedings under the last preceding section for failing” there shall be substituted “ any legal proceedings under section 31(1) of the National Minimum Wage Act 1998, as it applies for the purposes of this Act, for refusing or wilfully neglecting ”.

Section 11 U.K.

F23 6 U.K. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F23 Sch. 2 para. 6 repealed (22.7.2004) by Statute Law (Repeals) Act 2004 (c. 14), Sch. 1 Pt. 8

Section 12 U.K.

7 (1) Section 12 (officers) shall be amended as follows. U.K.

F24 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) At the end of the section there shall be added—

“(8) The powers conferred by subsections (3) and (4) of this section are not exercisable in any case where corresponding or similar powers conferred by any of the enforcement provisions of the National Minimum Wage Act 1998, as they have effect for the purposes of this Act, are exercisable by virtue of section 3A of this Act.

(9) In subsection (8) of this section, “the enforcement provisions of the National Minimum Wage Act 1998” has the same meaning as in subsection (1) of section 3A of this Act.”

Textual Amendments

F24 Sch. 2 para. 7(2) repealed (22.7.2004) by Statute Law (Repeals) Act 2004 (c. 14), Sch. 1 Pt. 8

Information obtained by national minimum wage officers U.K.

8 U.K. After section 15 there shall be inserted—

“15A Information obtained by national minimum wage officers.

(1) This section applies to information which has been obtained by an officer acting for the purposes of the National Minimum Wage Act 1998.

(2) This section does not apply to any information to the extent that the information relates to—

(a) any failure to allow holidays directed to be allowed by an order under section 3 of this Act; or

(b) any terms and conditions of employment fixed by such an order by virtue of subsection (1)(c) of that section.

(3) Information to which this section applies may, with the authority of the Secretary of State, be supplied to the relevant Minister for use for any purpose relating to this Act.

(4) Information supplied under subsection (3) of this section shall not be supplied by the recipient to any other person or body unless—

(a) it could be supplied to that person or body under that subsection; or

(b) it is supplied for the purposes of any civil or criminal proceedings relating to this Act;

and shall not be supplied in those circumstances without the authority of the Secretary of State.

(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 relevant Minister” means—

(a) in relation to England, the Minister of Agriculture, Fisheries and Food; and

(b) in relation to Wales, the Minister of the Crown with the function of appointing officers under section 12 of this Act in relation to Wales.”

Section 17 U.K.

9 (1) Section 17 (interpretation) shall be amended as follows. U.K.

(2) In subsection (1) the following definition shall be inserted at the appropriate place—

• ““the national minimum wage” means the single hourly rate for the time being in force by virtue of regulations under section 1(3) of the National Minimum Wage Act 1998, but this definition is subject to subsection (1A) of this section;”.

(3) After subsection (1) there shall be inserted—

“(1A) If, in the case of persons of any description, regulations under subsection (2) of section 3 of the National Minimum Wage Act 1998—

(a) prevent them being persons who (within the meaning of that Act) qualify for the national minimum wage, or

(b) prescribe a rate (“the reduced rate”) for the national minimum wage other than the single hourly rate for the time being prescribed under section 1(3) of that Act,

this Act shall have effect in relation to persons of that description as if in a case falling within paragraph (a) above the national minimum wage were nil and in a case falling within paragraph (b) above the national minimum wage were the reduced rate.”

Relationship between the national minimum wage and agricultural wages legislation U.K.

10 U.K. After section 17 there shall be inserted—

“17A Relationship between this Act and the National Minimum Wage Act 1998.

(1) Except so far as expressly provided by this Act, nothing in the National Minimum Wage Act 1998 or in regulations made under that Act affects the operation of this Act.

(2) This Act is subject to—

(a) section 46 of the National Minimum Wage Act 1998; and

(b) section 47 of that Act and any regulations made under that section.”

Part II U.K. The Agricultural Wages (Scotland) Act 1949

11 U.K. The M76 Agricultural Wages (Scotland) Act 1949 shall be amended in accordance with this Part of this Schedule.

Marginal Citations

M76 1949 c. 30.

Section 3 U.K.

12 (1) Section 3 (power of Scottish Agricultural Wages Board to fix minimum rates of wages, holidays to be allowed etc.) shall be amended as follows. U.K.

(2) After subsection (2A) there shall be inserted—

“(2B) No minimum rate fixed under this section which is an hourly rate shall be less than the national minimum wage.

(2C) No minimum rate fixed under this section which is a rate other than an hourly rate shall be such as to yield a less amount of wages for each hour worked than the hourly amount of the national minimum wage.”

(3) After subsection (7) there shall be added—

“(8) If the Board makes, or purports to make, an order fixing a minimum rate under this section—

(a) which is an hourly rate but which is lower than the national minimum wage in force when that minimum rate comes into effect, or

(b) which is a rate other than an hourly rate but which is such as to yield a less amount of wages for each hour worked than the hourly amount of the national minimum wage in force when that minimum rate comes into effect,

the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate equal to the national minimum wage or, as the case may be, a minimum rate such as to yield an amount of wages for each hour worked equal to the hourly amount of the national minimum wage.

(9) If, at any time after a minimum rate which is an hourly rate comes into effect under this section, the national minimum wage becomes higher than that minimum rate, then, as respects any period beginning at or after that time, the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate equal to the national minimum wage.

(10) If, at any time after a minimum rate other than an hourly rate comes into effect under this section, the national minimum wage is increased to such a level that that minimum rate yields a less amount of wages for each hour worked than the hourly amount of the national minimum wage, then, as respects any period beginning at or after that time, the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate such as to yield an amount of wages for each hour worked equal to the hourly amount of the national minimum wage.

(11) Subsections (8) to (10) of this section are without prejudice to the power of the Board to make further orders under this section fixing any minimum rates.

(12) Where an order under this section fixes any particular minimum rate of wages by reference to two or more component rates, of which—

(a) one is the principal component, and

(b) the other or others are supplemental or additional components,

(as in a case where the minimum rate for night work is fixed as the sum of the minimum rate payable in respect of work other than night work and a supplemental or additional minimum rate in respect of working at night) the national minimum wage provisions of this section apply in relation to the principal component rate and not the supplemental or additional component rates.

(13) The national minimum wage provisions of this section do not apply in relation to any minimum rate which is in the nature of an allowance payable in respect of some particular responsibility or circumstance (as in a case where a minimum rate is fixed in respect of being required to keep a dog).

(14) The national minimum wage provisions of this section do not apply in relation to any minimum rate fixed under this section—

(a) by virtue of subsection (2)(d) of this section, or

(b) by virtue of section 67 of the M77 Agriculture Act 1967 (sick pay),

unless and to the extent that regulations under section 2 of the National Minimum Wage Act 1998 make provision which has the effect that circumstances or periods in respect of which the minimum rate in question is required to be paid to a worker are treated as circumstances in which, or times at which, a person is to be regarded as working.

(15) In this section “the national minimum wage provisions of this section” means subsections (2B), (2C) and (8) to (10) of this section.”

Marginal Citations

M77 1967 c. 22.

Enforcement U.K.

13 U.K. After section 3 there shall be inserted—

“3A Enforcement.

(1) The enforcement provisions of the National Minimum Wage Act 1998 shall have effect for the purposes of this Act as they have effect for the purposes of that Act, but with the modifications specified in subsection (3) of this section.

(2) In subsection (1) of this section “the enforcement provisions of the National Minimum Wage Act 1998” means the following provisions of that Act—

(a) sections 9 to 11 (records);

(b) section 14 (powers of officers);

(c) sections 17 and 19 to 22 (enforcement of right to national minimum wage);

(d) sections 23 and 24 (right not to suffer detriment);

(e) section 28 (evidence: reversal of burden of proof in civil proceedings);

(f) sections 31, 32 and 33(4) and (5) (offences);

(g) section 48 (superior employees); and

(h) section 49 (restriction on contracting out).

(3) In the application of any provision of the National Minimum Wage Act 1998 by subsection (1) of this section—

(a) any reference to that Act, other than a reference to a specific provision of it, includes a reference to this Act;

(b) any reference to a worker (within the meaning of that Act) shall be taken as a reference to a worker employed in agriculture (within the meaning of this Act);

(c) any reference to a person (however described) who qualifies for the national minimum wage shall be taken as a reference to a worker employed in agriculture;

(d) subject to paragraph (c) of this subsection, any reference to the national minimum wage, other than a reference to the hourly amount of the national minimum wage, shall be taken as a reference to the minimum rate applicable under this Act;

(e) subject to paragraph (c) of this subsection, any reference to qualifying for the national minimum wage shall be taken as a reference to being entitled to the minimum rate applicable under this Act; and

(f) any reference to a pay reference period shall be disregarded.

(4) In section 104A of the M78 Employment Rights Act 1996 (unfair dismissal: national minimum wage) in subsection (1)(c)—

(a) any reference to a person qualifying for the national minimum wage includes a reference to a person being or becoming entitled to a minimum rate applicable under this Act; and

(b) any reference to a person qualifying for a particular rate of national minimum wage includes a reference to a person being or becoming entitled to a particular minimum rate applicable under this Act.”

Commencement Information

I16 Sch. 2 para. 13 partly in force; para. 13 not in force at Royal Assent, see s. 56(2); para. 13 (except the reference mentioned) in force at 1.4.1999 by S.I. 1999/685, art. 2, Sch.

Marginal Citations

M78 1996 c. 18.

Section 4 U.K.

14 U.K. In section 4 (enforcement of wages and holiday orders) the following provisions shall cease to have effect—

(a) in subsection (1)—

(i) paragraphs (a), (b) and (d); and

(ii) the words “and, in the case of an offence consisting of a failure to pay wages” onwards;

(b) subsection (2);

(c) in subsection (3), the words “has paid wages at not less than the minimum rate of” and “, as the case may be”; and

(d) subsection (4).

Section 5 U.K.

F25 15 U.K. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F25 Sch. 2 para. 15 repealed (S.) (1.10.2004) by The Agricultural Wages (Permits to Infirm and Incapacitated Persons) (Repeals) (Scotland) Regulations 2004 (S.S.I. 2004/384), reg. 1(1), sch.

Section 11 U.K.

16 U.K. Section 11(1)(a) (invalidity of certain agreements) shall cease to have effect.

Section 12 U.K.

17 (1) Section 12 (officers) shall be amended as follows. U.K.

(2) Subsection (4)(a) (power to institute civil proceedings on behalf of worker on account of payment of wages at less than the applicable minimum rate etc) shall cease to have effect.

(3) At the end of the section there shall be added—

“(7) The powers conferred by subsection (3) of this section are not exercisable in any case where corresponding or similar powers conferred by any of the enforcement provisions of the National Minimum Wage Act 1998, as they have effect for the purposes of this Act, are exercisable by virtue of section 3A of this Act.

(8) In subsection (7) of this section, “the enforcement provisions of the National Minimum Wage Act 1998” has the same meaning as in subsection (1) of section 3A of this Act.”

Information obtained by national minimum wage officers U.K.

18 U.K. After section 15 there shall be inserted—

“15A Information obtained by national minimum wage officers.

(1) This section applies to information which has been obtained by an officer acting for the purposes of the National Minimum Wage Act 1998.

(2) This section does not apply to any information to the extent that the information relates to—

(a) any failure to allow holidays directed to be allowed by an order under section 3 of this Act; or

(b) any terms and conditions of employment fixed by such an order by virtue of subsection (1)(c) of that section.

(3) Information to which this section applies may, with the authority of the relevant Minister, be supplied to the Secretary of State for use for any purpose relating to this Act.

(4) Information supplied under subsection (3) of this section shall not be supplied by the recipient to any other person or body unless—

(a) it could be supplied to that person or body under that subsection; or

(b) it is supplied for the purposes of any civil or criminal proceedings relating to this Act;

and shall not be supplied in those circumstances without the authority of the relevant Minister.

(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 relevant Minister” means the Minister of the Crown with the function of appointing officers under section 13(1)(a) of the National Minimum Wage Act 1998.”

Section 17 U.K.

19 (1) Section 17 (interpretation) shall be amended as follows. U.K.

(2) In subsection (1) the following definition shall be inserted in the appropriate place—

• ““the national minimum wage” means the single hourly rate for the time being in force by virtue of regulations under section 1(3) of the National Minimum Wage Act 1998, but this definition is subject to subsection (1A) of this section;”.

(3) After subsection (1) there shall be inserted—

“(1A) If, in the case of persons of any description, regulations under subsection (2) of section 3 of the National Minimum Wage Act 1998—

(a) prevent them being persons who (within the meaning of that Act) qualify for the national minimum wage; or

(b) prescribe a rate (“the reduced rate”) for the national minimum wage other than the single hourly rate for the time being prescribed under section 1(3) of that Act,

this Act shall have effect in relation to persons of that description as if in a case falling within paragraph (a) above the national minimum wage were nil and in a case falling within paragraph (b) above the national minimum wage were the reduced rate.”

Relationship between national minimum wage and agricultural wages legislation U.K.

20 U.K. After section 17 there shall be inserted—

“17A Relationship between this Act and the National Minimum Wage Act 1998.

(1) Except so far as expressly provided by this Act, nothing in the National Minimum Wage Act 1998 or in regulations made under that Act affects the operation of this Act.

(2) This Act is subject to—

(a) section 46 of the National Minimum Wage Act 1998; and

(b) section 47 of that Act and any regulations made under that section.”

Part III U.K. The Agricultural Wages (Regulation) (Northern Ireland) Order 1977

21 U.K. The M79 Agricultural Wages (Regulation) (Northern Ireland) Order 1977 shall be amended in accordance with this Part of this Schedule.

Marginal Citations

M79 S.I. 1977/2151 (N.I.22).

Article 2 U.K.

22 (1) Article 2 (interpretation) shall be amended as follows. U.K.

(2) In paragraph (2) the following definition shall be inserted at the appropriate place—

• ““the national minimum wage” means the single hourly rate for the time being in force by virtue of regulations under section 1(3) of the National Minimum Wage Act 1998, but this definition is subject to paragraph (2A);”.

(3) After paragraph (2) there shall be inserted—

“(2A) If, in the case of persons of any description, regulations under subsection (2) of section 3 of the National Minimum Wage Act 1998—

(a) prevent them being persons who (within the meaning of that Act) qualify for the national minimum wage, or

(b) prescribe a rate (“the reduced rate”) for the national minimum wage other than the single hourly rate for the time being prescribed under section 1(3) of that Act,

this Order shall have effect in relation to persons of that description as if in a case falling within sub-paragraph (a) the national minimum wage were nil and in a case falling within sub-paragraph (b) the national minimum wage were the reduced rate.”

Relationship between the national minimum wage and agricultural wages legislation U.K.

23 U.K. After Article 2 there shall be inserted—

“2A Relationship between this Order and the National Minimum Wage Act 1998.

(1) Except so far as expressly provided by this Order, nothing in the National Minimum Wage Act 1998 or in regulations made under that Act affects the operation of this Order.

(2) This Order is subject to—

(a) section 46 of the National Minimum Wage Act 1998; and

(b) section 47 of that Act and any regulations made under that section.”

Article 4 U.K.

24 (1) Article 4 (power of Agricultural Wages Board for Northern Ireland to fix minimum rates of wages) shall be amended as follows. U.K.

(2) After paragraph (1) there shall be inserted—

“(1A) No minimum rate fixed under this Article which is an hourly rate shall be less than the national minimum wage.

(1B) No minimum rate fixed under this Article which is a rate other than an hourly rate shall be such as to yield a less amount of wages for each hour worked than the hourly amount of the national minimum wage.”

(3) After paragraph (12) there shall be added—

“(13) If the Board makes, or purports to make, an order fixing a minimum rate under this Article—

(a) which is an hourly rate but which is lower than the national minimum wage in force when that minimum rate comes into effect, or

(b) which is a rate other than an hourly rate but which is such as to yield a less amount of wages for each hour worked than the hourly amount of the national minimum wage in force when that minimum rate comes into effect,

the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate equal to the national minimum wage or, as the case may be, a minimum rate such as to yield an amount of wages for each hour worked equal to the hourly amount of the national minimum wage.

(14) If, at any time after a minimum rate which is an hourly rate comes into effect under this Article, the national minimum wage becomes higher than that minimum rate, then, as respects any period beginning at or after that time, the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate equal to the national minimum wage.

(15) If, at any time after a minimum rate other than an hourly rate comes into effect under this Article, the national minimum wage is increased to such a level that that minimum rate yields a less amount of wages for each hour worked than the hourly amount of the national minimum wage, then, as respects any period beginning at or after that time, the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate such as to yield an amount of wages for each hour worked equal to the hourly amount of the national minimum wage.

(16) Paragraphs (13) to (15) are without prejudice to the power of the Board to make further orders under this Article fixing any minimum rates.

(17) Where an order under this Article fixes any particular minimum rate of wages by reference to two or more component rates, of which—

(a) one is the principal component, and

(b) the other or others are supplemental or additional components,

(as in a case where the minimum rate for night work is fixed as the sum of the minimum rate payable in respect of work other than night work and a supplemental or additional minimum rate in respect of working at night) the national minimum wage provisions of this Article apply in relation to the principal component rate and not the supplemental or additional component rates.

(18) The national minimum wage provisions of this Article do not apply in relation to any minimum rate which is in the nature of an allowance payable in respect of some particular responsibility or circumstance (as in a case where a minimum rate is fixed in respect of being required to keep a dog).

(19) The national minimum wage provisions of this Article do not apply in relation to any minimum rate fixed under this Article by virtue of Article 5 or 8(5), unless and to the extent that regulations under section 2 of the National Minimum Wage Act 1998 make provision which has the effect that circumstances or periods in respect of which the minimum rate in question is required to be paid to a worker employed in agriculture are treated as circumstances in which, or times at which, a person is to be regarded as working.

(20) In this Article “the national minimum wage provisions of this Article” means paragraphs (1A), (1B) and (13) to (15).”

Article 6 U.K.

F26 25 U.K. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F26 Sch. 2 para. 25 repealed (N.I.) (1.12.2006) by The Agricultural Wages (Abolition of Permits to Infirm and Incapacitated Persons) Regulations (Northern Ireland) 2006 (S.R. 2006/429), reg. 1, Sch.

Enforcement U.K.

26 U.K. After Article 8 there shall be inserted—

“ Enforcement. U.K.

8A (1) The enforcement provisions of the National Minimum Wage Act 1998 shall have effect for the purposes of this Order as they have effect for the purposes of that Act, but with the modifications specified in paragraphs (3) and (4).

(2) In paragraph (1) “the enforcement provisions of the National Minimum Wage Act 1998” means the following provisions of that Act—

(a) sections 9 to 11 (records);

(b) section 14 (powers of officers);

(c) sections 17 and 19 to 22 (enforcement of right to national minimum wage);

(d) sections 23 and 24 (right not to suffer detriment);

(e) section 28 (evidence: reversal of burden of proof in civil proceedings);

(f) sections 31 to 33 (offences);

(g) section 48 (superior employers); and

(h) section 49 (restriction on contracting out).

(3) In the application of any provision of the National Minimum Wage Act 1998 by paragraph (1)—

(a) any reference to that Act, other than a reference to a specific provision of it, includes a reference to this Order;

(b) any reference to a worker (within the meaning of that Act) shall be taken as a reference to a worker employed in agriculture (within the meaning of this Order);

(c) any reference to a person (however described) who qualifies for the national minimum wage shall be taken as a reference to a worker employed in agriculture;

(d) subject to sub-paragraph (c), any reference to the national minimum wage, other than a reference to the hourly amount of the national minimum wage, shall be taken as a reference to the minimum rate applicable under this Order;

(e) subject to sub-paragraph (c), any reference to qualifying for the national minimum wage shall be taken as a reference to being entitled to the minimum rate applicable under this Order; and

(f) any reference to a pay reference period shall be disregarded.

(4) In the application of section 33 of the National Minimum Wage Act 1998 (proceedings for offences) by paragraph (1), any reference to the Secretary of State shall be taken to include a reference to the Department of Agriculture for Northern Ireland.

(5) In Article 135A of the M80 Employment Rights (Northern Ireland) Order 1996 (unfair dismissal: national minimum wage) in paragraph (1)(c)—

(a) any reference to a person qualifying for the national minimum wage includes a reference to a person being or becoming entitled to a minimum rate applicable under this Order; and

(b) any reference to a person qualifying for a particular rate of national minimum wage includes a reference to a person being or becoming entitled to a particular minimum rate applicable under this Order.”

Commencement Information

I17 Sch. 2 para. 26 partly in force; para. 26 not in force at Royal Assent, see s. 56(2); para. 26 (except the reference mentioned in the Sch. of the commencing S.I.) in force at 1.4.1999 by S.I. 1999/685, art. 2, Sch.

Marginal Citations

M80 S.I. 1996/1919 (N.I.16).

Information obtained by national minimum wage officers U.K.

27 U.K. After Article 11 there shall be inserted—

“11A Information obtained by national minimum wage officers.

(1) This Article applies to information which has been obtained by an officer acting for the purposes of the National Minimum Wage Act 1998.

(2) This Article does not apply to any information to the extent that the information relates to any failure to allow holidays in accordance with Article 8.

(3) Information to which this Article applies may, with the authority of the Secretary of State, be supplied to the Department for use for any purpose relating to this Order.

(4) Information supplied under paragraph (3) shall not be supplied by the recipient to any other person or body unless—

(a) it could be supplied to that person or body under that paragraph; or

(b) it is supplied for the purposes of any civil or criminal proceedings relating to this Order;

and shall not be supplied in those circumstances without the authority of the Secretary of State.

(5) This Article does not limit the circumstances in which information may be supplied or used apart from this Article.”

Section 53.

SCHEDULE 3 U.K. Repeals and revocations

Commencement Information

I18 Sch. 3 partly in force; Sch. 3 not in force at Royal Assent see s. 56(2); Sch. 3 in force for certain purposes at 1.11.1998 by S.I. 1998/2574, art. 2(1), Sch. 1; Sch. 3 in force for certain purposes at 1.4.1999 by S.I. 1999/685, arts. 2, 3, Sch.

Reference	Short title or title	Extent of repeal or revocation
11 & 12 Geo. 6 c. 47.	The Agricultural Wages Act 1948.	In section 4, in subsection (1), paragraphs (a), (b) and (d) and the words from “and, in the case of an offence consisting of a failure to pay wages” onwards, subsection (2), in subsection (3), the words “has paid wages at not less than the minimum rate or” and “as the case may be”, and subsection (4).
		Section 7(2).
		Section 11(1)(a).
		In section 12(5)(a), the words “on account of the payment of wages to him at less than the minimum rate applicable or”.
12 & 13 Geo. 6 c. 30.	The Agricultural Wages (Scotland) Act 1949.	In section 4, in subsection (1), paragraphs (a), (b) and (d) and the words “and, in the case of an offence consisting of a failure to pay wages” onwards, subsection (2), in subsection (3), the words “has paid wages at not less than the minimum rate of” and “, as the case may be” and subsection (4).
		Section 11(1)(a).
		Section 12(4)(a).
1996 c. 17.	The Employment Tribunals Act 1996.	In section 21(1)(f), the word “or”.
1996 c. 18.	The Employment Rights Act 1996.	In section 108(3), the word “or” at the end of paragraph (g).
		In section 109(2), the word “or” at the end of paragraph (g).
S.I. 1996/1919 (N.I.16).	The Employment Rights (Northern Ireland) Order 1996.	In Article 142(2), the word “or” at the end of sub-paragraph (b).