National Minimum Wage Bill

National Minimum Wage Bill - continued	House of Commons
Enforcement - continued

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

18. - (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 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 15 above; or

(b) in relation to Northern Ireland, present a complaint under Article 55(1)(a) of the 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 15 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 15 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.

Financial penalty for non-compliance.

19. - (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);

(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 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 17 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 20(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.

Appeals against penalty notices.

20. - (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 there were no grounds for the service of the penalty notice; or

(b) that the amount of the financial penalty as shown in the notice is incorrect.

(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) 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 19(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.

Rights not to suffer unfair dismissal or other detriment

The right not to suffer detriment.

21. - (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 29 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.

(2) It is immaterial for the purposes 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 this Act for which the remedy for its infringement is by way of a complaint to an employment tribunal;

(b) any right conferred under section 12 above; and

(4) Except where a person is dismissed in circumstances in which-

(a) by virtue of section 197 of the Employment Rights Act 1996 (fixed term contracts), Part X of that Act (unfair dismissal) does not apply to the dismissal, or

(b) in relation to Northern Ireland, by virtue of Article 240 of the Employment Rights (Northern Ireland) Order 1996, Part XI of that Order does not apply to the dismissal,

this section does not apply where the detriment in question amounts to dismissal within the meaning of that Part.

Enforcement of the right.

22. - (1) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 21 above.

(2) Subject to the following provisions of this section, the provisions of-

(a) sections 48(2) to (4) and 49 of the 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 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 21(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 Employment Rights Act 1996 or Article 72 of the 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 Employment Rights Act 1996 or Article 153 of the 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 Employment Rights Act 1996, or

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

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-

"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-
	(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 29 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.
	(2) It is immaterial for the purposes 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 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 15 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".

(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-

"(dd) subsection (1) of section 104A (read with subsection (2) of that section) applies, or".

Prepared 18 February 1998