Bringing a claim for the National Minimum Wage

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

HM Revenue and Customs can bring a claim on behalf of a worker in the employment tribunal or the civil courts to recover minimum wage arrears. Alternatively, the worker can bring a claim for unlawful deduction from wages. A claim in the employment tribunal must be brought within three months of the most recent failure to pay the minimum wage. Unlike a claim for breach of contract (see Chapter 3: Contract breach) a claim for unlawful deduction of wages can be brought in the employment tribunal while the worker is still employed.

A worker can also claim if the employer unilaterally reduces working hours to keep wages at what they were before a new minimum wage rate came into force.

Any attempt to contract out of the minimum wage 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 would reduce wages to below the level of the minimum wage.

If an employer increases the productivity target to fund an increase in the minimum wage 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 increase in the minimum wage, this is likely to be an unlawful deduction from wages (Laird v Stoddart IRLR 591 EAT; Aviation & Airport Services Ltd v Bellfield EAT/194/00) (see Deductions and underpayments).