NMWM13190 | Issuing Notices of Underpayment: when to suspend a penalty on a notice

Relevant legislation
When to suspend the penalty
Any criminal proceedings being taken or considered - reference to Business Unit Head

Relevant legislation

The legislation that applies to this page is as follows:

• Employment Rights Act 2025, section 109

When to suspend the penalty

When a penalty is imposed, it must be suspended if criminal proceedings have been or may be started against the employer for the criminal offence of refusing or wilfully neglecting to pay the National Minimum Wage for any pay reference period. In these circumstances, the penalty will be raised and immediately suspended. The Notice of Underpayment must tell the employer that the penalty is being suspended and the reason why. The employer is not required to pay the penalty unless it is reinstated at a later date by a penalty activation notice.

A penalty does not need to be suspended if criminal proceedings are being taken (or may be taken) against the employer for any other criminal offence under the National Minimum Wage Act.

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Any criminal proceedings being taken or considered - reference to Business Unit Head

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