At a recent Employment Appeal Tribunal (Mears Homecare Ltd v Bradburn & Others), the question being asked of the tribunal, regarded the requirement under a TUPE transfer to keep pay records for National Minimum Wage purposes, and whether the responsibility to keep these records lay with the transferor or transferee.
Approximately four months after the Claimants transferred to their new employer under a TUPE arrangement, production notices were served on the Respondent (transferor) requesting wage information. Employers have 14 days following the serving of a production notice to respond, the Respondent failed to do so in this case, which resulted in an Employment Tribunal ordering them to pay £600 to each Claimant.
Employers are required to keep pay records for existing employee’s and for those who have left employment. Workers have the right to request their employer to provide these records if they have reasons to believe they have not been paid the National Minimum Wage. This requirement is contained in Section 9 of the National Minimum Wage Act 1998.
The EAT overturned the decision of the earlier Employment Tribunal.
The EAT ruled that under a TUPE transfer, the employment does not cease, therefore for the purpose of National Minimum Wage, the obligation to provide wage records also transfers from the transferor to the transferee.
As the transferor had originally made payment for these records and consequently the obligation to maintain them, the EAT said that this was not a good reason for that obligation not to transfer as there was no reason why the transferee should request these historical records to be delivered as part of the TUPE process.
