Office of Public Sector Information
(2) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above—
(a) whether or not the employee has the right, or
(b) whether or not the right has been infringed,
but, for that subsection to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.
(3) The following are the rights to which this section applies—
(a) any right conferred by, or by virtue of, any provision of the National Minimum Wage Act 1998 for which the remedy for its infringement is by way of a complaint to an employment tribunal; and
(b) any right conferred by section 17 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration).”
(2) In section 105 of that Act (redundancy as unfair dismissal) in subsection (1)(c) (which refers to any of subsections (2) to (7) of that section applying) for “(7)” there shall be substituted “(7A)” and after subsection (7) there shall be inserted—
“(7A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104A (read with subsection (2) of that section).”
(3) In section 108 of that Act (exclusion of right: qualifying period of employment) in subsection (3) (cases where no qualifying period is required) the word “or” at the end of paragraph (g) shall be omitted and after that paragraph there shall be inserted—
“(gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, or”.
(4) In section 109 of that Act (exclusion of right: upper age limit) in subsection (2) (cases where upper age limit does not apply) the word “or” at the end of paragraph (g) shall be omitted and after that paragraph there shall be inserted—
“(gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, or”.
(1) After Article 135 of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996 (assertion of statutory right) there shall be inserted—
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
(a) any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right of the employee’s to which this Article applies; or
(b) the employer was prosecuted for an offence under section 31 of the National Minimum Wage Act 1998 as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, a right of the employee’s to which this Article applies; or
(c) the employee qualifies, or will or might qualify, for the national minimum wage or for a particular rate of national minimum wage.
(2) It is immaterial for the purposes of sub-paragraph (a) or (b) of paragraph (1)—
(a) whether or not the employee has the right, or
(b) whether or not the right has been infringed;
but, for that paragraph to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.
(3) The following are the rights to which this Article applies—
(a) any right conferred by, or by virtue of, any provision of the National Minimum Wage Act 1998 for which the remedy for its infringement is by way of a complaint to an industrial tribunal, and
(b) any right conferred by section 17 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration).”
(2) In Article 137 of that Order (redundancy as unfair dismissal) after paragraph (6) there shall be inserted—
“(6A) This paragraph applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in paragraph (1) of Article 135A (read with paragraph (2) of that Article).”
(3) In Article 140 of that Order (exclusion of right: qualifying period of employment) in paragraph (3) (cases where no qualifying period is required) after sub-paragraph (f) there shall be inserted—
“(ff) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies,”.
(4) In Article 141 of that Order (exclusion of right: upper age limit) in paragraph (2) (cases where upper age limit does not apply) after sub-paragraph (f) there shall be inserted—
“(ff) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies,”.
(5) In Article 142 of that Order (exclusion of right: dismissal procedures agreements) in paragraph (2) (cases where paragraph (1) does not apply) the word “or” at the end of sub-paragraph (b) shall be omitted and after sub-paragraph (c) there shall be added “or
(d) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies.”
(6) The Department of Economic Development may by order repeal subsection (5) above and this subsection.
(1) In section 4 of the [1996 c. 17.] Employment Tribunals Act 1996 (composition of employment tribunal) in subsection (3) (which specifies proceedings to be heard by the chairman alone) after paragraph (ca) there shall be inserted—
“(cc) proceedings on a complaint under section 11 of the National Minimum Wage Act 1998;
(cd) proceedings on an appeal under section 19 or 22 of the National Minimum Wage Act 1998;”.
(2) In Article 6 of the [S.I. 1996/1921 (N.I.18).] Industrial Tribunals (Northern Ireland) Order 1996 (composition of industrial tribunal in Northern Ireland) in paragraph (3) (which specifies proceedings to be heard by the chairman alone) after sub-paragraph (b) there shall be inserted—
“(bb) proceedings on a complaint under section 11 of the National Minimum Wage Act 1998;
(bc) proceedings on an appeal under section 19 or 22 of the National Minimum Wage Act 1998;”.
(1) Where in any civil proceedings any question arises as to whether an individual qualifies or qualified at any time for the national minimum wage, it shall be presumed that the individual qualifies or, as the case may be, qualified at that time for the national minimum wage unless the contrary is established.
(2) Where—
(a) a complaint is made—
(i) to an employment tribunal under section 23(1)(a) of the [1996 c. 18.] Employment Rights Act 1996 (unauthorised deductions from wages), or
(ii) to an industrial tribunal under Article 55(1)(a) of the [S.I. 1996/1919 (N.I.16).] Employment Rights (Northern Ireland) Order 1996, and
(b) the complaint relates in whole or in part to the deduction of the amount described as additional remuneration in section 17(1) above,
it shall be presumed for the purposes of the complaint, so far as relating to the deduction of that amount, that the worker in question was remunerated at a rate less than the national minimum wage unless the contrary is established.
(3) Where in any civil proceedings a person seeks to recover on a claim in contract the amount described as additional remuneration in section 17(1) above, it shall be presumed for the purposes of the proceedings, so far as relating to that amount, that the worker in question was remunerated at a rate less than the national minimum wage unless the contrary is established.
In section 21(1) of the [1996 c. 17.] Employment Tribunals Act 1996 (appeal from employment tribunal to Employment Appeal Tribunal on question of law arising under or by virtue of the enactments there specified) after paragraph (f) there shall be inserted—
“(ff) the National Minimum Wage Act 1998, or”.
(1) In section 18 of the [1996 c. 17.] Employment Tribunals Act 1996 (conciliation) in subsection (1) (which specifies the proceedings and claims to which the section applies) after paragraph (d) there shall be inserted—
“(dd) under or by virtue of section 11, 18, 20(1)(a) or 24 of the National Minimum Wage Act 1998;”.
(2) In Article 20 of the [S.I. 1996/1921 (N.I.18).] Industrial Tribunals (Northern Ireland) Order 1996 (conciliation) in paragraph (1) (which specifies the proceedings and claims to which the Article applies) after sub-paragraph (c) there shall be inserted—
“(cc) under or by virtue of section 11, 18, 20(1)(b) or 24 of the National Minimum Wage Act 1998;”.
(1) If the employer of a worker who qualifies for the national minimum wage refuses or wilfully neglects to remunerate the worker for any pay reference period at a rate which is at least equal to the national minimum wage, that employer is guilty of an offence.
(2) If a person who is required to keep or preserve any record in accordance with regulations under section 9 above fails to do so, that person is guilty of an offence.
(3) If a person makes, or knowingly causes or allows to be made, in a record required to be kept in accordance with regulations under section 9 above any entry which he knows to be false in a material particular, that person is guilty of an offence.
(4) If a person, for purposes connected with the provisions of this Act, produces or furnishes, or knowingly causes or allows to be produced or furnished, any record or information which he knows to be false in a material particular, that person is guilty of an offence.
(5) If a person—
(a) intentionally delays or obstructs an officer acting for the purposes of this Act in the exercise of any power conferred by this Act, or
(b) refuses or neglects to answer any question, furnish any information or produce any document when required to do so under section 14(1) above,
that person is guilty of an offence.
(6) Where the commission by any person of an offence under subsection (1) or (2) above is due to the act or default of some other person, that other person is also guilty of the offence.
(7) A person may be charged with and convicted of an offence by virtue of subsection (6) above whether or not proceedings are taken against any other person.
(8) In any proceedings for an offence under subsection (1) or (2) above it shall be a defence for the person charged to prove that he exercised all due diligence and took all reasonable precautions to secure that the provisions of this Act, and of any relevant regulations made under it, were complied with by himself and by any person under his control.
(9) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(1) This section applies to any offence under this Act.
(2) If an offence committed by a body corporate is proved—
(a) to have been committed with the consent or connivance of an officer of the body, or
(b) to be attributable to any neglect on the part of such an officer,
the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(3) In subsection (2) above “officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.
(4) If the affairs of a body corporate are managed by its members, subsection (2) above applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(5) If an offence committed by a partnership in Scotland is proved—
(a) to have been committed with the consent or connivance of a partner, or
(b) to be attributable to any neglect on the part of a partner,
the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.
(6) In subsection (5) above, “partner” includes a person purporting to act as a partner.
(1) The persons who may conduct proceedings for an offence under this Act—
(a) in England and Wales, before a magistrates' court, or
(b) in Northern Ireland, before a court of summary jurisdiction,
shall include any person authorised for the purpose by the Secretary of State even if that person is not a barrister or solicitor.
(2) In England and Wales or Northern Ireland, proceedings for an offence under this Act may be begun at any time within whichever of the following periods expires the later, that is to say—
(a) the period of 6 months from the date on which evidence, sufficient in the opinion of the Secretary of State to justify a prosecution for the offence, comes to the knowledge of the Secretary of State, or
(b) the period of 12 months from the commission of the offence,
notwithstanding anything in any other enactment (including an enactment comprised in Northern Ireland legislation) or in any instrument made under an enactment.
(3) For the purposes of subsection (2) above, a certificate purporting to be signed by or on behalf of the Secretary of State as to the date on which such evidence as is mentioned in paragraph (a) of that subsection came to the knowledge of the Secretary of State shall be conclusive evidence of that date.
(4) In Scotland, proceedings for an offence under this Act may, notwithstanding anything in section 136 of the [1995 c. 46.] Criminal Procedure (Scotland) Act 1995, be commenced at any time within—
(a) the period of 6 months from the date on which evidence, sufficient in the opinion of the procurator fiscal to justify proceedings, comes to the knowledge of the procurator fiscal, or
(b) the period of 12 months from the commission of the offence,
whichever period expires the later.
(5) For the purposes of subsection (4) above—
(a) a certificate purporting to be signed by or on behalf of the procurator fiscal as to the date on which such evidence as is mentioned above came to the knowledge of the procurator fiscal shall be conclusive evidence of that date; and
(b) subsection (3) of section 136 of the said Act of 1995 (date of commencement of proceedings) shall have effect as it has effect for the purposes of that section.
(1) This section applies in any case where an individual (“the agency worker”)—
(a) is supplied by a person (“the agent”) to do work for another (“the principal”) under a contract or other arrangements made between the agent and the principal; but
(b) is not, as respects that work, a worker, because of the absence of a worker’s contract between the individual and the agent or the principal; and
(c) is not a party to a contract under which he undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.
(2) In a case where this section applies, the other provisions of this Act shall have effect as if there were a worker’s contract for the doing of the work by the agency worker made between the agency worker and—
(a) whichever of the agent and the principal is responsible for paying the agency worker in respect of the work; or
(b) if neither the agent nor the principal is so responsible, whichever of them pays the agency worker in respect of the work.
(1) In determining for the purposes of this Act whether a home worker is or is not a worker, section 54(3)(b) below shall have effect as if for the word “personally” there were substituted “(whether personally or otherwise)”.
(2) In this section “home worker” means an individual who contracts with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person.
(1) Subject to section 37 below, the provisions of this Act have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other workers.
(2) In this Act, subject to section 37 below, “Crown employment” means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by statutory provision.
(3) For the purposes of the application of the other provisions of this Act in relation to Crown employment in accordance with subsection (1) above—
(a) references to an employee or a worker shall be construed as references to a person in Crown employment;
(b) references to a contract of employment or a worker’s contract shall be construed as references to the terms of employment of a person in Crown employment; and
(c) references to dismissal, or to the termination of a worker’s contract, shall be construed as references to the termination of Crown employment.
(1) A person serving as a member of the naval, military or air forces of the Crown does not qualify for the national minimum wage in respect of that service.
(2) Section 36 above applies to employment by an association established for the purposes of Part XI of the [1996 c. 14.] Reserve Forces Act 1996, notwithstanding anything in subsection (1) above.
(1) Apart from section 21 above, the provisions of this Act have effect in relation to employment as a relevant member of the House of Lords staff as they have effect in relation to other employment.
(2) Nothing in any rule of law or the law or practice of Parliament prevents a relevant member of the House of Lords staff from bringing before the High Court or a county court any claim under this Act.
(3) In this section “relevant member of the House of Lords staff” means any person who is employed under a worker’s contract with the Corporate Officer of the House of Lords.
(1) Apart from section 21 above, the provisions of this Act have effect in relation to employment as a relevant member of the House of Commons staff as they have effect in relation to other employment.
(2) Nothing in any rule of law or the law or practice of Parliament prevents a relevant member of the House of Commons staff from bringing before the High Court or a county court any claim under this Act.
(3) In this section “relevant member of the House of Commons staff” means any person—
(a) who was appointed by the House of Commons Commission; or
(b) who is a member of the Speaker’s personal staff.
For the purposes of this Act, an individual employed to work on board a ship registered in the United Kingdom under Part II of the [1995 c. 21.] Merchant Shipping Act 1995 shall be treated as an individual who under his contract ordinarily works in the United Kingdom unless—
(a) the employment is wholly outside the United Kingdom; or
(b) the person is not ordinarily resident in the United Kingdom;
and related expressions shall be construed accordingly.
The Secretary of State may by regulations make provision for this Act to apply, with or without modifications, as if—
(a) any individual of a prescribed description who would not otherwise be a worker for the purposes of this Act were a worker for those purposes;
(b) there were in the case of any such individual a worker’s contract of a prescribed description under which the individual works; and
(c) a person of a prescribed description were the employer under that contract.
(1) In this section “offshore employment” means employment for the purposes of activities—
(a) in the territorial waters of the United Kingdom, or
(b) connected with the exploration of the sea-bed or subsoil, or the exploitation of their natural resources, in the United Kingdom sector of the continental shelf, or
(c) connected with the exploration or exploitation, in a foreign sector of the continental shelf, of a cross-boundary petroleum field.
(2) Her Majesty may by Order in Council provide that the provisions of this Act apply, to such extent and for such purposes as may be specified in the Order (with or without modification), to or in relation to a person in offshore employment.
(3) An Order in Council under this section—
(a) may provide that all or any of the provisions of this Act, as applied by such an Order in Council, apply—
(i) to individuals whether or not they are British subjects, and
(ii) to bodies corporate whether or not they are incorporated under the law of a part of the United Kingdom,
and apply even where the application may affect their activities outside the United Kingdom,
(b) may make provision for conferring jurisdiction on any court or class of court specified in the Order in Council, or on employment tribunals, in respect of offences, causes of action or other matters arising in connection with offshore employment,
(c) may (without prejudice to subsection (2) above) provide that the provisions of this Act, as applied by the Order in Council, apply in relation to any person in employment in a part of the areas referred to in subsection (1)(a) and (b) above,
(d) may exclude from the operation of section 3 of the [1878 c. 73.] Territorial Waters Jurisdiction Act 1878 (consents required for prosecutions) proceedings for offences under this Act in connection with offshore employment,
(e) may provide that such proceedings shall not be brought without such consent as may be required by the Order in Council,
(f) may (without prejudice to subsection (2) above) modify or exclude the operation of sections 1(2)(b) and 40 above.
(4) Any jurisdiction conferred on a court or tribunal under this section is without prejudice to jurisdiction exercisable apart from this section by that or any other court or tribunal.
(5) In this section—
“cross-boundary petroleum field” means a petroleum field that extends across the boundary between the United Kingdom sector of the continental shelf and a foreign sector of the continental shelf,
“foreign sector of the continental shelf” means an area outside the territorial waters of any state, within which rights with respect to the sea-bed and subsoil and their natural resources are exercisable by a state other than the United Kingdom,
“petroleum field” means a geological structure identified as an oil or gas field by the Order in Council concerned, and
“United Kingdom sector of the continental shelf” means the area designated under section 1(7) of the [1964 c. 29.] Continental Shelf Act 1964.
A person—
(a) employed as master, or as a member of the crew, of a fishing vessel, and
(b) remunerated, in respect of that employment, only by a share in the profits or gross earnings of the vessel,
does not qualify for the national minimum wage in respect of that employment.
(1) A worker employed by a charity, a voluntary organisation, an associated fund-raising body or a statutory body does not qualify for the national minimum wage in respect of that employment if he receives, and under the terms of his employment (apart from this Act) is entitled to,—
(a) no monetary payments of any description, or no monetary payments except in respect of expenses—
(i) actually incurred in the performance of his duties; or
(ii) reasonably estimated as likely to be or to have been so incurred; and
(b) no benefits in kind of any description, or no benefits in kind other than the provision of some or all of his subsistence or of such accommodation as is reasonable in the circumstances of the employment.
(2) A person who would satisfy the conditions in subsection (1) above but for receiving monetary payments made solely for the purpose of providing him with means of subsistence shall be taken to satisfy those conditions if—
(a) he is employed to do the work in question as a result of arrangements made between a charity acting in pursuance of its charitable purposes and the body for which the work is done; and
(b) the work is done for a charity, a voluntary organisation, an associated fund-raising body or a statutory body.
(3) For the purposes of subsection (1)(b) above—
(a) any training (other than that which a person necessarily acquires in the course of doing his work) shall be taken to be a benefit in kind; but
(b) there shall be left out of account any training provided for the sole or main purpose of improving the worker’s ability to perform the work which he has agreed to do.
(4) In this section—
“associated fund-raising body” means a body of persons the profits of which are applied wholly for the purposes of a charity or voluntary organisation;
“charity” means a body of persons, or the trustees of a trust, established for charitable purposes only;
“receive”, in relation to a monetary payment or a benefit in kind, means receive in respect of, or otherwise in connection with, the employment in question (whether or not under the terms of the employment);
“statutory body” means a body established by or under an enactment (including an enactment comprised in Northern Ireland legislation);
“subsistence” means such subsistence as is reasonable in the circumstances of the employment in question, and does not include accommodation;
“voluntary organisation” means a body of persons, or the trustees of a trust, which is established only for charitable purposes (whether or not those purposes are charitable within the meaning of any rule of law), benevolent purposes or philanthropic purposes, but which is not a charity.
(1) A prisoner does not qualify for the national minimum wage in respect of any work which he does in pursuance of prison rules.
(2) In this section—
“prisoner” means a person detained in, or on temporary release from, a prison;
“prison” includes any other institution to which prison rules apply;
“prison rules” means—
in relation to England and Wales, rules made under section 47 of the [1952 c. 52.] Prison Act 1952;
in relation to Scotland, rules made under section 39 of the [1989 c. 45.] Prisons (Scotland) Act 1989; and
in relation to Northern Ireland, rules made under section 13 of the [1953 c. 18 (N.I.).] Prison Act Northern Ireland) 1953.
(1) A person who has been prosecuted for an offence which falls within paragraph (a) or (b) below, that is to say—
(a) an offence under any provision of this Act in its application for the purposes of the agricultural wages legislation, or
(b) an offence under any provision of this Act in its application otherwise than for the purposes of the agricultural wages legislation,
shall not also be liable to be prosecuted for an offence which falls within the other of those paragraphs but which is constituted by the same conduct or alleged conduct for which he was prosecuted.
(2) No amount shall be recoverable both—
(a) under or by virtue of this Act in its application for the purposes of the agricultural wages legislation, and
(b) under or by virtue of this Act in its application otherwise than for those purposes,
in respect of the same work.
(3) Nothing in the agricultural wages legislation, or in any order under that legislation, affects the operation of this Act in its application otherwise than for the purposes of that legislation.
(4) In this section “the agricultural wages legislation” means—
(a) the [1948 c. 47.] Agricultural Wages Act 1948;
(b) the [1949 c. 30.] Agricultural Wages (Scotland) Act 1949; and
(c) the Agricultural Wages (Regulation) (Northern Ireland) Order 1977.
(1) The following enactments, that is to say—
(a) the [1948 c. 47.] Agricultural Wages Act 1948,
(b) the [1949 c. 30.] Agricultural Wages (Scotland) Act 1949, and
(c) the [S.I. 1977/2151 (N.I.22).] Agricultural Wages (Regulation) (Northern Ireland) Order 1977,
shall be amended in accordance with Schedule 2 to this Act.
National Minimum Wage Act 1998 (C. 39)