Office of Public Sector Information
A financial penalty payable under a notice of underpayment—
(a) in England and Wales, is recoverable, if a county court so orders, under section 85 of the County Courts Act 1984 or otherwise as if it were payable under an order of that court;
(b) in Scotland, may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland;
(c) in Northern Ireland, is recoverable, if the county court so orders, as if it were payable under an order of that court.
(1) Where a notice of underpayment has been served (and not already withdrawn or rescinded) and it appears to an officer acting for the purposes of this Act that the notice incorrectly includes or omits any requirement or is incorrect in any particular, the officer may withdraw it by serving notice of the withdrawal on the employer.
(2) Where a notice of underpayment is withdrawn and no replacement notice of underpayment is served in accordance with section 19G below—
(a) any sum paid by or recovered from the employer by way of financial penalty payable under the notice must be repaid to him with interest at the appropriate rate running from the date when the sum was paid or recovered;
(b) any appeal against the notice must be dismissed;
(c) after the withdrawal no complaint may be presented or other civil proceedings commenced by virtue of section 19D above in reliance on any non-compliance with the notice before it was withdrawn;
(d) any complaint or proceedings so commenced before the withdrawal may be proceeded with despite the withdrawal.
(3) In a case where subsection (2) above applies, the notice of withdrawal must indicate the effect of that subsection (but a failure to do so does not make the withdrawal ineffective).
(4) In subsection (2)(a) above, “the appropriate rate” means the rate that, on the date the sum was paid or recovered, was specified in section 17 of the Judgments Act 1838.
(1) Where an officer acting for the purposes of this Act serves a notice of withdrawal under section 19F above and is of the opinion referred to in section 19(1) above in relation to any worker specified in the notice which is being withdrawn (“the original notice”), he may at the same time serve another notice under section 19 above (“the replacement notice”).
(2) The replacement notice may not relate to any worker to whom the original notice did not relate.
(3) If the replacement notice contravenes subsection (2) above, that fact shall be an additional ground of appeal for the purposes of section 19C above.
(4) The replacement notice may relate to a pay reference period ending after the date of service of the original notice.
(5) Section 19(7) above applies in relation to the replacement notice as if the reference to six years before the date of service of the notice were a reference to six years before the date of service of the original notice.
(6) The replacement notice must—
(a) indicate the differences between it and the original notice that it is reasonable for the officer to consider are material; and
(b) indicate the effect of section 19H below.
(7) Failure to comply with subsection (6) above does not make the replacement notice ineffective.
(8) Where a replacement notice is withdrawn under section 19F above, no further replacement notice may be served under subsection (1) above pursuant to the withdrawal.
(9) Nothing in this section affects any power that arises apart from this section to serve a notice of underpayment in relation to any worker.
(1) This section applies where a notice of underpayment is withdrawn under section 19F above and a replacement notice is served in accordance with section 19G above.
(2) If an appeal has been made under section 19C above against the original notice and the appeal has not been withdrawn or finally determined before the time when that notice is withdrawn—
(a) that appeal (“the earlier appeal”) shall have effect after that time as if it were against the replacement notice; and
(b) the employer may exercise his right of appeal under section 19C above against the replacement notice only if he withdraws the earlier appeal.
(3) After the withdrawal no complaint may be presented or other civil proceedings commenced by virtue of section 19D above in reliance on any non-compliance with the notice before it was withdrawn; but any complaint or proceedings so commenced before the withdrawal may be proceeded with despite the withdrawal.
(4) If a sum was paid by or recovered from the employer by way of financial penalty under the original notice—
(a) an amount equal to that sum (or, if more than one, the total of those sums) shall be treated as having been paid in respect of the replacement notice; and
(b) any amount by which that sum (or total) exceeds the amount payable under the replacement notice must be repaid to the employer with interest at the appropriate rate running from the date when the sum (or, if more than one, the first of them) was paid or recovered.
(5) In subsection (4)(b) above “the appropriate rate” means the rate that, on the date mentioned in that provision, was specified in section 17 of the Judgments Act 1838.”
(2) In any period after the coming into force of subsection (1) above and before the coming into force of section 62 of the Tribunals, Courts and Enforcement Act 2007 (c. 15), section 19E(a) of the National Minimum Wage Act 1998 (c. 39), as substituted by subsection (1) above, shall have effect as if for “under section 85 of the County Courts Act 1984” there were substituted “by execution issued from the county court”.
(3) In the National Minimum Wage Act 1998, in section 51 (regulations and orders), in subsections (6) and (7)(a), the words “21 or” are repealed.
(4) In the Employment Tribunals Act 1996 (c. 17), in section 4 (composition of employment tribunal), in subsection (3)(cd), for “section 19 or 22” there is substituted “section 19C”.
(5) In the Commissioners for Revenue and Customs Act 2005 (c. 11), in section 44 (payment into Consolidated Fund), subsection (2)(f) is repealed.
(6) In the Agricultural Wages Act 1948 (c. 47), in section 3A(2)(c) (enforcement of agricultural legislation in England and Wales), for “22F” there is substituted “19H”.
(7) Nothing in this section (or Part 2 of the Schedule) affects any provision of the National Minimum Wage Act 1998 as that provision has effect for the purposes of—
(a) the Agricultural Wages (Scotland) Act 1949 (c. 30), or
(b) the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 (SI 1977/2151) (N.I.22).
(1) In the National Minimum Wage Act 1998, section 14 (powers of officers) is amended as specified in subsections (2) and (3).
(2) In subsection (1)(a), the words “any material part of” are repealed.
(3) After subsection (3) there is inserted—
“(3A) The power of an officer to copy records under subsection (1)(a) includes a power to remove such records from the place where they are produced to him in order to copy them; but such records must be returned as soon as reasonably practicable to the relevant person by whom they are produced.”
(4) Nothing in this section (or Part 3 of the Schedule) affects section 14 of the National Minimum Wage Act 1998 as it has effect for the purposes of—
(a) the Agricultural Wages (Scotland) Act 1949, or
(b) the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 (SI 1977/2151) (N.I.22).
(1) In the National Minimum Wage Act 1998, in section 31 (offences), in subsection (9), for the words from “on summary conviction” to the end there is substituted—
“(a) on conviction on indictment, to a fine, or
(b) on summary conviction, to a fine not exceeding the statutory maximum”.
(2) In that Act, in section 33 (proceedings for offences), subsections (2) to (5) are repealed.
(3) Nothing in this section (or Part 4 of the Schedule) affects section 31 or 33 of the National Minimum Wage Act 1998 (c. 39) as it has effect for the purposes of—
(a) the Agricultural Wages (Scotland) Act 1949 (c. 30), or
(b) the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 (SI 1977/2151) (N.I.22).
(1) In the Finance Act 2007 (c. 11), in section 84 (criminal investigations: powers of Revenue and Customs), in subsection (3), for “13 to” there is substituted “14,”.
(2) In the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39), in section 23A (investigation of offences by Revenue and Customs), in subsection (2)(b), for “13 to” there is substituted “14,”.
In the National Minimum Wage Act 1998, after section 37 there is inserted—
(1) A person (not being a person to whom section 37(1) above applies) who—
(a) is a member of any of the forces specified in subsection (2) below, and
(b) assists the activities of those forces otherwise than in the course of Crown employment,
does not qualify for the national minimum wage in respect of anything done by him in so assisting those activities.
(2) The forces referred to in subsection (1) above are—
(a) the Combined Cadet Force;
(b) the Sea Cadet Corps;
(c) the Army Cadet Force;
(d) the Air Training Corps.”
In the National Minimum Wage Act 1998, in section 44 (voluntary workers), after subsection (1) there is inserted—
“(1A) For the purposes of subsection (1)(a) above, expenses which—
(a) are incurred in order to enable the worker to perform his duties,
(b) are reasonably so incurred, and
(c) are not accommodation expenses,
are to be regarded as actually incurred in the performance of his duties.”
In the Employment Agencies Act 1973 (c. 35), in each of sections 3B, 5(2) and 6(2), for the words from “on summary conviction” to the end there is substituted—
“(a) on conviction on indictment, to a fine;
(b) on summary conviction, to a fine not exceeding the statutory maximum.”
(1) In the Employment Agencies Act 1973, section 9 (inspection) is amended as follows.
(2) In subsection (1), in paragraph (b)—
(a) after “premises and” there is inserted “(i)”;
(b) after “thereunder” there is inserted—
“(ii) any financial records or other financial documents not falling within paragraph (i) which he may reasonably require to inspect for the purpose of ascertaining whether the provisions of this Act and of any regulations made thereunder are being complied with or of enabling the Secretary of State to exercise his functions under this Act;”.
(3) In that subsection, paragraph (d) and the preceding “and” are repealed.
(4) In subsection (1A), for the words from “he may require” to the end there is substituted “the officer may by notice in writing require the person carrying on the employment agency or employment business to furnish him with the record or other document or information at such time and place as he may specify.”
(5) After subsection (1A) there is inserted—
“(1AA) Where a person carrying on an employment agency or employment business fails to comply with subsection (1A) in relation to any record or other document or information and the officer has reasonable cause to believe that the record or other document or information is kept by—
(a) a person concerned with the carrying on of the employment agency or employment business, or
(b) a person formerly so concerned,
the officer may by notice in writing require that person to furnish him with the record or other document or information at such time and place as he may specify.
(1AB) Where a person carrying on an employment agency or employment business fails to comply with subsection (1A) in relation to any financial record or other financial document which is kept by a bank, the officer may by notice in writing require the bank to furnish the record or other document to him at such time and place as he may specify.
(1AC) In subsection (1AB), “bank” means a person who has permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits.”
(6) After subsection (1AC) (as inserted by subsection (5) above), there is inserted—
“(1AD) An officer may take copies of any record or other document inspected by or furnished to him under this section.
(1AE) An officer may, for the purposes of subsection (1AD), remove a record or other document from the premises where it is inspected by or furnished to him; but he must return it as soon as reasonably practicable.”
(7) In subsection (1C), for “subsection (1)” there is substituted “this section”.
(8) In subsection (3)—
(a) for “paragraph (a), (b) or (d) of subsection (1) of this section” there is substituted “subsection (1)(a) or (b), (1AD) or (1AE)”;
(b) for “paragraph (c) of that subsection or under subsection (1A)” there is substituted “subsection (1)(c), (1A), (1AA) or (1AB)”.
(9) In subsection (4)(a), the words “subsection (1) of” are repealed.
In the Employment Agencies Act 1973 (c. 35), in section 11 (offences by bodies corporate)—
(a) the existing provision becomes subsection (1), and
(b) after that subsection there is inserted—
“(2) Where an offence under this Act committed by a partnership in Scotland is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, a partner or a person purporting to act as a partner, he, as well as the partnership, shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.”
(1) In the National Minimum Wage Act 1998 (c. 39), in section 15 (information obtained by officers), after subsection (5) there is inserted—
“(5A) Information to which this section applies—
(a) may be supplied by, or with the authorisation of, the Secretary of State to an officer acting for the purposes of the Employment Agencies Act 1973 for any purpose relating to that Act; and
(b) may be used by an officer acting for the purposes of that Act for any purpose relating to that Act.”
(2) In the Employment Agencies Act 1973, in section 9 (inspection), subsection (4) is amended as follows—
(a) after “this section” there is inserted “(or pursuant to section 15(5A) of the National Minimum Wage Act 1998)”;
(b) after paragraph (iv) there is inserted “or
(v) to an officer acting for the purposes of the National Minimum Wage Act 1998 for any purpose relating to that Act;”.
(1) The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) is amended as follows.
(2) In section 174 (right not to be excluded or expelled from union) after subsection (4B), there is inserted—
“(4C) Conduct which consists in an individual’s being or having been a member of a political party is not conduct falling within subsection (4A) if membership of that political party is contrary to—
(a) a rule of the trade union, or
(b) an objective of the trade union.
(4D) For the purposes of subsection (4C)(b) in the case of conduct consisting in an individual’s being a member of a political party, an objective is to be disregarded—
(a) in relation to an exclusion, if it is not reasonably practicable for the objective to be ascertained by a person working in the same trade, industry or profession as the individual;
(b) in relation to an expulsion, if it is not reasonably practicable for the objective to be ascertained by a member of the union.
(4E) For the purposes of subsection (4C)(b) in the case of conduct consisting in an individual’s having been a member of a political party, an objective is to be disregarded—
(a) in relation to an exclusion, if at the time of the conduct it was not reasonably practicable for the objective to be ascertained by a person working in the same trade, industry or profession as the individual;
(b) in relation to an expulsion, if at the time of the conduct it was not reasonably practicable for the objective to be ascertained by a member of the union.
(4F) Where the exclusion or expulsion of an individual from a trade union is wholly or mainly attributable to conduct which consists of an individual’s being or having been a member of a political party but which by virtue of subsection (4C) is not conduct falling within subsection (4A), the exclusion or expulsion is not permitted by virtue of subsection (2)(d) if any one or more of the conditions in subsection (4G) apply.
(4G) Those conditions are—
(a) the decision to exclude or expel is taken otherwise than in accordance with the union’s rules;
(b) the decision to exclude or expel is taken unfairly;
(c) the individual would lose his livelihood or suffer other exceptional hardship by reason of not being, or ceasing to be, a member of the union.
(4H) For the purposes of subsection (4G)(b) a decision to exclude or expel an individual is taken unfairly if (and only if)—
(a) before the decision is taken the individual is not given—
(i) notice of the proposal to exclude or expel him and the reasons for that proposal, and
(ii) a fair opportunity to make representations in respect of that proposal, or
(b) representations made by the individual in respect of that proposal are not considered fairly.”
(3) In section 176 (remedies), in subsection (1D)(a), for “a member of the general public” substitute “a person working in the same trade, industry or profession as the complainant”.
The Schedule contains repeals.
An amendment or repeal effected by this Act has the same extent as the enactment (or the relevant part of the enactment) to which it relates.
(1) The provisions of this Act come into force as follows—
(a) sections 1 to 9 and Parts 1 and 2 of the Schedule come into force on such day as the Secretary of State may by order appoint;
(b) section 10 and Part 3 of the Schedule come into force at the end of the period of two months beginning with the day on which this Act is passed;
(c) sections 11 and 12 and Part 4 of the Schedule come into force on such day as the Secretary of State may by order appoint;
(d) sections 13 and 14 come into force at the end of the period of two months beginning with the day on which this Act is passed;
(e) sections 15 to 17 and Part 5 of the Schedule come into force on 6 April 2009;
(f) sections 18 and 19 come into force on such day as the Secretary of State may by order appoint;
(g) the remaining provisions of this Act come into force on the day on which this Act is passed.
(2) An order under subsection (1) is to be made by statutory instrument.
(3) An order under subsection (1) may—
(a) appoint different days for different purposes;
(b) contain transitional provision, or savings.
This Act may be cited as the Employment Act 2008.
Employment Act 2008