Ms Bradburn and her colleagues, the claimants in this case, had been employed by Mears Homecare Ltd until their employment transferred to two other employers under TUPE. They served "production notices" on Mears Homecare under the national minimum wage legislation requesting information about their pay relating to the period before their employment transferred. Mears Homecare failed to respond on time and the employees brought tribunal claims under the national minimum wage legislation for a declaration and award. Mears Homecare was ordered to pay the claimants £600, which was 80 times the current hourly rate for the national minimum wage.
Mears Homecare appealed and the EAT upheld the appeal. It held that Mears Homecare, as transferor, was not the appropriate recipient of the production notices. The transferees, who had stepped into the shoes of Mears Homecare when the employees' employment transferred, were the employers for the purposes of national minimum wage legislation.
WHAT DOES THIS MEAN FOR EMPLOYERS?
The transfer of responsibility for national minimum wage records can be inconvenient. The President of the EAT suggested, as a practical solution, that transferees can ensure that they receive full pay records from the transferor by including specific contractual protection. Transferors, who remain liable for wilful failure to comply with national minimum wage legislation after a TUPE transfer, should require the transferee to deliver pay records to them in the event of a prosecution. However, these options may not be possible where employees transfer from contractor to subsequent contractor where there is no contract between the transferor and transferee.
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