The government has opened a new consultation 'Enforcement of Employment Rights Recommendations'. This looks at simplifying the enforcement action by HMRC and tribunals against non-compliant employers and toughening sanctions applied.

The aim is to provide certainty and clarity to individuals and businesses in respect of Employment Rights.

The consultation of one of four consultations published in the governments response to the 2017 Taylor Review of Modern Working Practices.

The review made a number of recommendations addressed by this consultation:

  • HMRC should take responsibility for enforcing the basic set of core pay rights applying to all workers: National Minimum Wage (NMW), sick pay and holiday pay
  • The enforcement process should be simplified for employees and workers, government should take enforcement action on tribunal awards without the individual needing to apply
  • Naming and Shaming scheme for employers who do not pay Tribunal awards
  • Employment Tribunals should be obligated to consider aggravated breach penalties and cost orders where an employer has already lost on broadly comparable facts
  • Tribunals should be allowed to uplift the compensation in the event of subsequent breaches against workers with materially the same working arrangements

The consultation suggests:

  • Establishing a naming scheme for employers who do not pay employment tribunal awards
  • Increasing the aggravated breach penalty limit to at least £20,000
  • The state taking responsibility for enforcing a basic set of core rights for vulnerable workers
  • Three options for strong action against employers who repeatedly ignore both their responsibilities and the decisions of employment tribunals (aggravated breach penalties, cost orders, uplifted awards)

The specific questions are:

Q1: Do you think workers typically receive pay during periods of annual leave or when they are off sick? Please give reasons.

Q2: Do you think problems are concentrated in any sector of the economy, or are suffered by any particular groups of workers? Please give reasons.

Q3: What barriers do you think are faced by individuals seeking to ensure they receive these payments?

Q4: What would be the advantages and disadvantages for businesses of state enforcement in these areas?

Q5: What other measures, if any, could government take to encourage workers to raise concerns over these rights with their employer or the state?

Q6: Do you agree there is a need to simplify the process for enforcement of employment tribunals? (yes/no/please give reasons)

Q7: The HMCTS enforcement reform project will improve user accessibility and support by introducing a digital point of entry for users interested in starting enforcement proceedings. How best do you think HMCTS can do this and is there anything further we can do to improve users’ accessibility and provide support to users?

Q8: The HMCTS enforcement reform project will simplify and digitise requests for enforcement through the introduction of a simplified digital system. How do you think HMCTS can simplify the enforcement process further for users?

Q9: The HMCTS enforcement reform project will streamline enforcement action by digitising and automating processes where appropriate. What parts of the civil enforcement process do you think would benefit from automation and what processes do you feel should remain as they currently are?

Q10: Do you think HMCTS should make the enforcement of employment tribunals swifter by defaulting all judgements to the High Court for enforcement, or should the option for each user to select High Court or County Court enforcement remain?

Q11: Do you have any further views on how the enforcement process can be simplified to make it more effective for users?

Q12: When do you think it is most appropriate to name an employer for non-payment (issued with a penalty notice/issued with a warning notice/ unpaid penalty/ other)? Please give reasons.

Q13: What other, if any, representations should be accepted for employers to not be named? Please give reasons.

Q14: What other ways could government incentivise prompt payment of employment tribunal awards?

Q15: Do you think the power to impose a financial penalty for aggravated breach could be used more effectively if the legislation set out what types of breaches of employment law would be considered as an aggravated breach?

Q16: Is what constitutes aggravated breach best left to judicial discretion or should we make changes to the circumstances that these powers can be applied?

Q17: Can you provide any categories that you think should be included as examples of aggravated breach?

Q18: When considering the grounds for a second offence breach of rights who should be responsible for providing evidence (or absence) of a first offence? Please give reasons for your answer.

Q19: What factors should be considered in determining whether a subsequent claim is a “second offence”? e.g. time period between claim and previous judgment, type of claim (different or the same), different claimants or same claimants, size of workforce etc.

Q20: How should a subsequent claim be deemed a “second offence”? e.g. broadly comparable facts, same or materially same working arrangements, other etc.

Q21: Of the options outlined, which do you believe would be the strongest deterrent to repeated non-compliance? Please give reasons

  1. Aggravated breach penalty
  2. Costs order
  3. 25% uplift in compensation

Q22: Are there any alternative powers that could be used to achieve the aim of taking action against repeated non-compliance?


The Taylor Review


Employer essential know-how

HMRC: Consultation on Enforcement of employment rights recommendations