The Government has revised its “naming and shaming” scheme of employers who fail to pay their workers the national minimum wage.

The “naming and shaming” scheme is one of the measures put into place by the Government to enforce the minimum wage law and accompanies the ability for the Government to issue a financial penalty to the employer, in addition to ordering them to pay what is owed to the worker themselves.

An employer that is breaking minimum wage law will be issued with a Notice of Underpayment by HMRC. The employer will have 28 days to appeal against the Notice of Underpayment issued by HMRC. If the employer does not appeal or an appeal has been unsuccessful HMRC will refer the employer to BIS to be considered for naming once a HMRC case closure letter has been issued to the employer.

BIS will only consider case for naming where the total arrears owed to workers are more than £100. The employer will have 14 days from the date of the HMRC case closure letter to make written representations to BIS outlining whether they fall under any of the exceptional circumstances for not being named under the scheme.

In all cases where an employer makes representations to BIS, the employer will need to provide evidence in support of their case for not being named.

If BIS do not receive any representations from the employer within 14 days of the date of the HMRC case closure letter or do not accept the representations made by the employer, the employer will be automatically named under the scheme via a BIS press notice. BIS will send a letter to employers stating that they will be named no earlier than 10 days from the date on that letter, attaching the fact sheet that HMRC gave them at the start of the process

Below are some of the criteria which may lead HMRC to refer cases to BIS under the naming scheme:

• there is evidence that the employer knowingly or deliberately failed to comply with their minimum wage obligations
• there is evidence that the employer has previously received advice from HMRC about the steps they need to take to ensure future compliance with national minimum wage and has not taken those steps
• there is evidence that the employer has failed to take adequate steps to keep or preserve minimum wage records
• there is evidence that the employer has delayed or obstructed a minimum wage compliance officer in the performance of their duties

Lorna Stafford, Lead Care Advice Consultant says: We have found that our members in the care sector are mostly at risk in relation to non-compliance with national minimum wage in the areas of sleep ins and travelling between work assignments. Any members who aren’t sure of where they stand in this regard should contact us so that we can explain the obligations.