Unfair Pay amd Being Paid Below the Minimum Wage Claims

Why is the National Minimum Wage important?

Implementation and enforcement of the National Minimum Wage is a central feature of the Government’s employment policies.  The message is clear: minimum pay rates will continue to increase above inflation in the coming years and those employers who fail to pay them will be penalised.

What are the basic NMW rates?

Workers who are working in the UK and who are over compulsory school age are entitled to be paid the NMW.  The current hourly rates are as follows from 4th April 2021:

• National Living Wage – £8.91 per hour, payable to workers aged 23 and over.
• National Minimum Wage – £8.36 per hour, payable to workers aged 21 and over.
• Development Rate – £6.56 per hour, payable to workers aged between 18 and 20 inclusive.
• Young Workers Rate – £4.62 per hour, payable to workers aged under 18 but over the compulsory school age.
• Apprenticeship Rate – £4.30 per hour, payable to apprentices aged 19 and under, or aged 19 and over but in their first year of apprenticeship.

Note that there is no minimum wage for children under the compulsory school age.

How does the National Living Wage differ from the NMW?

Introduced in April 2016, the National Living Wage (NLW) is an hourly rate calculated by the Living Wage Foundation as being the wage that workers need to earn in order to cover the basic costs of living. This means that all workers aged 23 or above are legally entitled to the NLW, which is set at £8.91 (4th April 2021) per hour, and those under 23 are entitled to other rates, dependant upon age amongst other factors.

Can I call an employee an “apprentice” and pay the lower rate NMW?

No. Firstly, the apprenticeship rate of £4.30 (from 4th April 2021) per hour is only payable to apprentices who are under 19, or who are 19 are or over and in their first year as an apprentice.  Secondly, an employer must ensure that its contract with the apprentice falls into one of two categories:

• A common law “contract of apprenticeship”, which is a fairly old-fashioned arrangement that places training (rather than working for the employer) as the primary purpose of the contract; or
• An “apprenticeship agreement”, which is a creature of statute and must be in a prescribed form, incorporating (amongst other things) details of the apprenticeship framework under which the employee is being trained.

An employer who pays the apprenticeship rate to an employee whose contract has not been properly drafted to comply with these requirements could fall foul of the NMW legislation. The employer could then be required to pay the full NMW rate, rather than the apprenticeship rate, to the employee.  If the underpayment is enforced via the HMRC compliance officers, then the employer could be required to pay an additional penalty of 200% of the original underpayment, as well as being “named and shamed” by the Department of Business Innovation and Skills.

Do I need to pay a wage for work experience or internships?

Children of compulsory school age are not entitled to be paid the NMW, so no difficulties arise when school children take part in work experience schemes.

However, the rules are different for young people who are over compulsory school age. There is a specific NMW exemption for work experience placements of up to one year undertaken by students as part of a UK-based Further or Higher Education course.

If a person is over the compulsory school age and entitled to the NMW, the lines between ‘worker’ and ‘intern’ must be clearly identified by the employer.  An intern must be there on a non-contractual basis and must not have restrictions placed on them, as they are working voluntarily.

Organisations can minimise the risk of an intern being found to be a worker by:

• Avoiding making payments to interns, other than of actual expenses reimbursed against receipts
• Removing or minimising perks that could be seen as ‘payment’
• Ensuring that the intern is not bound by any obligations to the organisation, for example, by giving the intern the ability to refuse tasks or to choose when to work
• Avoiding contractual language and instead use more flexible language such as “usual working hours” or “suggested tasks”
• Treating interns fairly by having in place clear procedures for dealing with any problems that may arise

The issue of unpaid internships is a political hot potato at the moment, as they are said to favour the socially advantaged, whilst disadvantaging those who cannot afford to work without being paid.  Best HR practice is to engage interns on a proper worker’s contract and to pay them the NMW appropriate to their age band.

What are the penalties of failing to pay the NMW?

Notice of underpayment will be issued if the compliance officer concludes that the NMW has not been paid.  This comprises a requirement for the employer to repay the arrears of the NMW to the individual worker, as well as to pay a financial penalty to HMRC of 200% of the arrears. This means that the employer will effectively have to pay three times the amount of the underpayment.  The employer does have a right of appeal to an Employment Tribunal.

Once a notice of underpayment has been issued – unless it is successfully appealed – the employer will be “named” by the Department of Business, Energy & Industrial Strategy (DBEIS).  While the employer can make written representations against being named, there are very few situations in which DBEIS will agree not to name an employer.  Often, the reputational damage to an organisation of being named is actually of more concern than the requirement to pay arrears and penalties.

While penalties of up to £20,000 per underpaid worker can be imposed, many NMW arrears penalties amount to less than £1,000 per worker.

In addition to enforcement by way of civil penalties and the “naming and shaming” regime, employers can be prosecuted by the CPS for refusing or willfully neglecting to pay NMW, failing to keep NMW records, making false entries, delaying or obstructing an investigation or refusing to answer questions.  Fines were previously capped at £5,000 for each individual offence, but now a criminal court can impose an unlimited fine upon conviction.