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NMWM13200 | Issuing Notices of Underpayment: penalties and Secretary of State directions

From HM Revenue & Customs · National Minimum Wage Manual

Relevant legislation

The legislation that applies to this page is as follows:

  • Employment Rights Act 2025, section 108

The Secretary of State for Business and Trade (NMWM02020) can issue a direction specifying that a penalty will not be applied in particular circumstances. The directions are published as part of the Department for Business and Trade, National Minimum Wage: policy on enforcement, prosecutions and naming employers who break National Minimum Wage Law.

The Secretary of State has issued a direction that a Notice of Underpayment should not include a penalty where:

  • an employer has followed written or published guidance from a government department or its agency about the employer’s compliance with National Minimum Wage regulations,

and

  • that guidance is incorrect.

When does the direction apply?

The direction applies when an employer can demonstrate they have taken reasonable care (NMWM13210) to pay the National Minimum Wage by following applicable government guidance when:

  1. the employer has:

  • sought written or published guidance from a government department or agency applicable to his situation, and

  • obtained written or published guidance, and

  • correctly followed that guidance

and

  1. the NMW Officer considers that the written or published guidance obtained by the employer was incorrect

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