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NMWM15070 | Enforcement and proceedings: final tribunal hearing

From HM Revenue & Customs · National Minimum Wage Manual

General

Appeals against a Notice of Underpayment issued by HM Revenue & Customs (NMWM02030), commonly result in the parties having to attend a final tribunal hearing. At such hearings HM Revenue & Customs are represented by a barrister (Counsel) instructed by our solicitor.

This type of hearing is where a full tribunal hears the evidence of both the appellant (the employer) and the respondent (HM Revenue & Customs) and the tribunal will consider and weigh up the evidence being presented. The evidence is generally heard by an Employment Judge alone. Sometimes up to two non-legal members sit with the Judge who collectively will decide whether the appeal should be allowed or dismissed.

The normal procedure in a tribunal is for the court to consider the evidence supplied by both parties which is presented via;

  • a “bundle” of relevant documentation; and

  • witness testimony, where witnesses may refer to and answer questions relating to their witness statements. The witnesses will include the NMW Officer, relevant workers and those third parties being put forward by the parties.

The bundle will be prepared by a solicitor and will include;

  • all relevant papers/forms/letters that contributed to the view of the investigating NMW Officer

  • key documents

  • notes of interview/telephone contact with employer/worker(s)

  • copies of evidence used during the investigation e.g. contracts, payslips, employer/workers records etc.

  • notice of underpayment and reasons for issue

  • NMW Officer witness statement

  • witness statements from worker(s).

  • witness statements from third parties

The bundles will be exchanged between the parties and copied to the tribunal in advance of the final hearing so that those involved can make themselves familiar with the contents.

Witness testimony

Witness testimony is an essential part of a tribunal. The witness statements being presented by HM Revenue & Customs will be co-ordinated by the NMW Officer in advance of the hearing and will be presented within the bundle.

Witness statements are “taken as read” which means that the witness will not be asked to read it out loud or asked for any initial clarification or explanations by the representative of HM Revenue & Customs.

(This content has been withheld because of exemptions in the Freedom of Information Act 2000)

At the hearing, the respective witnesses will be expected to be able to answer questions relating to their testimony. Where needed, witnesses will be able to refer to their written statements. It is expected that each side will cross examine the witnesses regarding their view of the facts. Similarly, the Employment Judge and side members can ask questions in order to better understand the facts of the case.

If a witness fails to attend the hearing, the tribunal will be unable to ask them questions regarding their evidence. In these circumstances, the tribunal is unlikely to place much weight on their evidence and will not rely on what they contributed to a NMW Officer’s investigation. (This content has been withheld because of exemptions in the Freedom of Information Act 2000)

Judgment

The Employment Judge will deliver a judgment, either in court at the end of the hearing or by issuing a reserved judgment by post after a period of consideration.

If the employer is successful, the Employment Judge can either;

  • dismiss the notice altogether - resulting in no arrears being due to the worker[s] and no penalty being due; or

  • vary the notice - resulting in the amount of arrears due to all/some of the workers being rectified (i.e., amended). If the arrears are rectified, the penalty will also need to be amended in line with the revised underpayment. In these circumstances, the Notice of Underpayment shall be treated as having been rectified from the date of the tribunal’s judgment from which the employer will have 14 days to pay half the penalty (NMWM14060).

If the employer is unsuccessful, the Employment Judge will dismiss the appeal and the employer will be expected to pay the arrears and penalty as described in the notice. (This content has been withheld because of exemptions in the Freedom of Information Act 2000)