Bringing a claim for the NMW

The law requires employers to keep adequate records showing they are paying the NMW, and a worker is entitled to inspect their individual record. In any tribunal claim, the onus is on the employer to prove that the NMW has been paid. Workers can contact the confidential Pay and Work Rights Helpline (0800 917 2368) who can offer help recovering NMW arrears.

HM Revenue and Customs can bring a claim on behalf of a worker in the employment tribunal or the civil courts (including the small claims court) to recover NMW arrears. Alternatively, the worker can bring a claim for unlawful deduction from wages. A tribunal claim must be brought within three months of the most recent non-payment. A claim for breach of contract can only be brought in the tribunal at the end of the employment (see Chapter 3: Contract breach), but a tribunal claim for unlawful deduction of wages can be brought while you are still employed.

The first step in any tribunal claim is now to contact Acas for early conciliation, which is free of charge. This step must be taken within the three-month deadline for bringing the claim. No claim can be brought in the tribunal without an Acas Early Conciliation Certificate. For more information see Chapter 1.

All tribunal claims now attract a fee, unless a claimant qualifies for fee remission. The fee is the same irrespective of the size of the claim. The issue fee for a claim to recover the NMW is £160, followed by a hearing fee of £230 if it does not settle (2014-15). See Chapter 1 for information about tribunal fees and remission.

Any attempt to contract out of the NMW is void (section 49 National Minimum Wage Act 2009). This means that any contract term, for example, to repay training fees, is void to the extent that it reduces wages to below the level of the NMW.

If an employer increases the productivity target to fund an NMW increase and an employee who is unable or unwilling to meet the new target is dismissed as a result, that dismissal may be automatically unfair (Bopari v Grasshopper EAT/284/01) (see Chapter 10: Automatically unfair dismissals). If an employer reduces an existing bonus or attendance payment to fund an NMW increase, this will be an unlawful deduction from wages unless the employment contract expressly permits changes to wages without workers’ consent (Laird v Stoddart IRLR 591 EAT; Aviation & Airport Services Ltd v Bellfield EAT/194/00) (see Deductions and underpayments, page 105).