HMRC have launched a new disclosure opportunity for employers who may not have complied with National Minimum Wage (NMW) requirements in the past. This has now closed.
Employers wishing to use the opportunity will need to make a disclosure using the appropriate form, and make good any historic underpayment to their employees, with the associated tax and NI being paid over to HMRC if applicable.
Update
- The online disclosure form referred to in this guide has been withdrawn by HMRC.
- The campaign remains open and users should use the telephone and postal details published by HMRC, see Campaigns: National Minimum Wage.
Who can use the opportunity?
- an employer (individual, partnership or company)
- someone acting on behalf of an employer (if you are a company director or company secretary)
- someone acting on behalf of someone else (for example, if you are a personal representative of a deceased person, who was an employer)
An agent can make the disclosure on behalf of a client. The opportunity covers years going back to 2009/10.
How to use
There is a step by step approach to using the disclosure:
- Check to see if you pay the correct amount of NMW. You can use the online tools HMRC have on their website to assist with this. If you find a shortfall you will need to check the amount of arrears owed to the employee, and disclose this at step 3.
- Make a notification to HMRC via the online form (link given below) to the dedicated email address at
This email address is being protected from spambots. You need JavaScript enabled to view it. . This form signals to HMRC that you are making a commitment to ensure you are compliant, and they will not then start an investigation until after the check is complete. - Once you have checked everything you should disclose the results of the check to HMRC using the disclosure form. This needs to be within two months of sending the notification form. You should send the form even if you find no errors or underpayments. You also need to pay any arrears to employees - the arrears are calculated at the current rates of NMW, not the rate they would have been entitled to at the time of the underpayment. You make a commitment to ensuring compliance with the correct rates going forward. HMRC will either accept the disclosure or contact you to discuss it.
- Finally, make good any underpayment of tax and NI to HMRC via the PAYE system.
Benefits
HMRCs guidance indicates that if the opportunity is used, no penalties will be charged. It will not however be a guarantee against prosecution where the criminal offence of tax fraud has taken place; however a full disclosure would be a factor in considering appropriate action.
The information on the opportunity can be found here.
Common errors
HMRC have published a list of common errors they have seen, along with example scenarios. Employers are encouraged to look at these, to check whether they may have unwittingly failed to follow the rules. We have summarised these here along with the key points HMRC are making.
Error 1 - Employing people under 25, apprentices, and cash payments
- Employing trainees on apprenticeship schemes and paying less than the appropriate rate: NMW is £2.73.
- Employing an apprentice aged 19 or over and not paying the correct rate after the first year is completed: NWM for a 19 year old apprentice is £2.73; however increases to £5.13 in second year.
- Employing an apprentice where there is a delay in the start of the relevant training course: NMW rate will depend whether contract issued is a contract of employment or a contract of apprenticeship.
- Topping up NMW payments with cash bonuses: cash payments are also earnings and count toward NMW, should also be recorded for PAYE/NI purposes
Error 2 - Taking deductions from pay
- Taking deductions from NMW pay to cover (for example) uniforms: NMW must be met after any deductions are accounted for.
- Deducting tips from pay. Tips cannot be used to meet NMW, and are taxable income for tax credits purposes.
Error 3 - Employing people on training schemes
- Not paying employees on a recognised training scheme for travel time when attending the course: travel time has to be paid in the same way as hours spent working or training.
- Not paying employees for time spent training outside of normal work hours, for example if they attend evening or weekend courses all training time has to be paid if it is qualifying; however if attendance is outside of working hours, travel time does not need to be covered.
- Paying apprentice rates where training is informal or in house, the correct rate will be normal age related rate as only approved recognised training will permit use of apprentice rate.
Updates
- 18/08/2015 Guide created
- 09/06/2016 Update added - online form withdrawn
