NMWM12240 - Records, evidence, powers and offences: powers: examples of how powers are used

Relevant legislation

The legislation that applies to this page is as follows:

• National Minimum Wage Act 1998, section 14

General

Most parties who come into contact with NMW Officers assist them with their enquiries without any reference to the powers they operate under. Where a party questions the legality of a NMW Officer’s actions it should be relatively straightforward to identify the appropriate power which permits the NMW Officer’s request. Where NMW Officers are prevented from acting for the purposes of the National Minimum Wage Act 1998 then consideration of a potential criminal offence will be appropriate (NMWM12250).

(This content has been withheld because of exemptions in the Freedom of Information Act 2000)NMWM12220(This content has been withheld because of exemptions in the Freedom of Information Act 2000)NMWM12250(This content has been withheld because of exemptions in the Freedom of Information Act 2000)

Examples of how powers may be used:

Example 1: An employer may be reluctant to meet a NMW Officer and answer questions.	An employer is a relevant person (NMWM12220) so is required to meet a NMW Officer and answer questions. A NMW Officer should arrange a mutually convenient time to meet but if this proves difficult a notice can be issued to require the employer to attend at a specified time and place. (This content has been withheld because of exemptions in the Freedom of Information Act 2000)
Example 2: An employer may ask a NMW Officer not to speak to workers.	A NMW Officer has the authority to speak to any worker as they are a “relevant person” (NMWM12220) and the employer is not able to prevent such action. (This content has been withheld because of exemptions in the Freedom of Information Act 2000)
Example 3: An employer may be unable to provide a copy of records and does not wish a NMW Officer to remove them for copying.	A NMW Officer should explain that they have power to remove records from the place where they are produced in order to copy them and that they must be returned as soon as reasonably practicable (the policy is for the return to be no later than 7 days). (This content has been withheld because of exemptions in the Freedom of Information Act 2000)
Example 4: An employer may express reservations about revealing information regarding self-employed people working in the business, explaining that they are not workers.	Just because the employer considers the people to be self-employed does not necessarily mean that they are to be treated as such for National Minimum Wage purposes. The NMW Officer should reassure the employer that they have the powers to ask questions in the course of forming an opinion regarding whether such people are workers for National Minimum Wage purposes.
Example 5: An agency may ask a NMW Officer not to speak to the clients where workers are placed.	A NMW Officer has the authority to speak to a client of an agency as that client is a “relevant person” (NMWM12220), and the employer is not able to prevent such action. The NMW Officer will be sensitive to an employer’s concerns but ultimately is responsible for ensuring that an investigation is comprehensive and fully explores the nature of the arrangements entered into by the respective parties.
Example 6: An accountant may refuse to provide information to a NMW Officer citing concerns with data protection.	Where employers are obliged to provide information sought under the National Minimum Wage Act then the data relating to that information is exempt from non-disclosure provisions. Data provided in these circumstances will not fall foul of the Data Protection Act.