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| Right of employee not to be unfairly dismissed: Great Britain. |
23. - (1) After section 104 of the Employment Rights Act 1996 (assertion of statutory right) there shall be inserted-
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| "The national minimum wage. |
104A. - (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-
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(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 |
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(b) the employer was prosecuted for an offence under section 28 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. |
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(2) It is immaterial for the purposes of subsection (1) above-
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(a) whether or not the employee has the right, or |
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(b) whether or not the right has been infringed, |
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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.
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(3) The following are the rights to which this section applies-
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(a) any right conferred by the National Minimum Wage Act 1998 for which the remedy for its infringement is by way of a complaint to an industrial tribunal; and |
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(b) any right conferred by section 15 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration)." |
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(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-
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"(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)."
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(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-
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"(gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, or". |
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(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-
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"(gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, or". |
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(5) In section 110 of that Act (exclusion of right: dismissal procedures agreements) in subsection (2) (cases where subsection (1) does not apply) the word "or" at the end of paragraph (d) shall be omitted and after that paragraph there shall be inserted-
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"(dd) subsection (1) of section 104A (read with subsection (2) of that section) applies, or". |
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| Right of employee not to be unfairly dismissed: Northern Ireland. |
24. - (1) After Article 135 of the Employment Rights (Northern Ireland) Order 1996 (assertion of statutory right) there shall be inserted-
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"The national minimum wage. |
| | 135A. - (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-
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(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 |
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(b) the employer was prosecuted for an offence under section 28 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. |
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(2) It is immaterial for the purposes of paragraph (1)-
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(a) whether or not the employee has the right, or |
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(b) whether or not the right has been infringed; |
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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.
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(3) The following are the rights to which this Article applies-
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(a) any right conferred by the National Minimum Wage Act 1998 for which the remedy for its infringement is by way of a complaint to an industrial tribunal, and |
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(b) any right conferred by section 15 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration)." |
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(2) In Article 137 of that Order (redundancy as unfair dismissal) after paragraph (6) there shall be inserted-
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"(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)."
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(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-
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"(ff) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies,". |
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(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-
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"(ff) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies,". |
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(5) In Article 142 of that Order (exclusion of right: dismissal procedures agreements) in paragraph (2) (cases where paragraph (1) does not apply) the word "or" at the end of sub-paragraph (b) shall be omitted and after sub-paragraph (c) there shall be added "or
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(d) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies." |
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Procedure and evidence in civil proceedings |
| Industrial tribunal hearings etc by chairman alone. |
25. - (1) In section 4 of the Industrial Tribunals Act 1996 (composition of industrial tribunal) in subsection (3) (which specifies proceedings to be heard by the chairman alone) after paragraph (c) there shall be inserted-
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"(cc) proceedings on a complaint under section 11 of the National Minimum Wage Act 1998; |
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(cd) proceedings on an appeal under section 17 or 20 of the National Minimum Wage Act 1998;". |
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(2) In Article 6 of the 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-
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"(bb) proceedings on a complaint under section 11 of the National Minimum Wage Act 1998; |
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(bc) proceedings on an appeal under section 17 or 20 of the National Minimum Wage Act 1998;". |
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| Reversal of burden of proof. |
26. - (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.
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(2) Where-
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(a) a complaint is made to an industrial tribunal under- |
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(i) section 23(1)(a) of the Employment Rights Act 1996 (unauthorised deductions from wages), or
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(ii) Article 55(1)(a) of the Employment Rights (Northern Ireland) Order 1996, and
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(b) the complaint relates in whole or in part to the deduction of the amount described as additional remuneration in section 15(1) above, |
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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.
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(3) Where in any civil proceedings a person seeks to recover on a claim in contract the amount described as additional remuneration in section 15(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.
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Conciliation |
| Conciliation. |
27. - (1) In section 18 of the Industrial 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-
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"(dd) under or by virtue of section 11, 16, 18(1)(a) or 22 of the National Minimum Wage Act 1998;". |
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(2) In Article 20 of the 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-
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"(cc) under or by virtue of section 11, 16, 18(1)(a) or 22 of the National Minimum Wage Act 1998;". |
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Offences |
| Offences. |
28. - (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.
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(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.
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(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.
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(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.
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(5) If a person-
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(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 |
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(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, |
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that person is guilty of an offence.
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(6) 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.
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| Offences by bodies corporate etc. |
29. - (1) This section applies to any offence under this Act.
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(2) If an offence committed by a body corporate is proved-
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(a) to have been committed with the consent or connivance of an officer of the body, or |
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(b) to be attributable to any neglect on the part of such an officer, |
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the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
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(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.
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(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.
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(5) If an offence committed by a partnership in Scotland is proved-
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(a) to have been committed with the consent or connivance of a partner, or |
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(b) to be attributable to any neglect on the part of a partner, |
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the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly
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(6) In subsection (5) above, "partner" includes a person purporting to act as a partner.
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