Richard Grogan on employment law: Non-payment of national minimum wage still an issue
Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes on persistent problems with non-payment of the minimum wage.
It appears from information coming out of the Workplace Relations Commission that in 2016, some 11,000 cases of underpayment of the National Minimum Wage have been investigated and ascertained. This is a significant issue.
Some of the reasons why employers are getting caught with claims under the National Minimum Wage are that there are a number of schemes in place which may look as if they are in compliance with the legislation, but which are not.
Some employers pay a certain amount as “wages” and a further amount as “expenses” or “subsistence”. In calculating the National Minimum Wage, issues such as expenses and subsistence payments are excluded.
Some employers attempt to put in the reduced rate of National Minimum Wage on the basis that the person is in a training contract. These are often at best “in house” training which is limited. For a person to be in training, they must be with a recognised institution.
Some claims are coming to light where the “employer” claims not to be an employer in the strict sense of the word. Having somebody to come to clean your house, do gardening or provide any other service to you will mean that that individual will become an “employee” for the purposes of the National Minimum Wage legislation.
Unfortunately, there are then those who, rather than by mistake or oversight or not fully understanding the law, none of which are an excuse, simply decide not to pay the National Minimum Wage and hope to get away with it.
It should be remembered that, unlike other claims under legislation going before the WRC, a claim under the National Minimum Wage can go back six years.
If a claim is made under the National Minimum Wage legislation, it is possible for the employee to bring claims under the Organisation of Working Time Act in respect of such items as Holiday Pay and Public Holiday Pay, just to mention two additional claims.
Employers need to be very aware of their obligation to pay the National Minimum Wage. They can be subject to an investigation from the Workplace Relations Commission Inspectors. Worse still, they can be subject to a claim before the WRC.
Employees are becoming aware of their entitlements and are more entitled to bring claims to the WRC. By certain additional claims which can legitimately be brought by an employee, they are in a position to obtain not only the underpayment of the National Minimum Wage, but compensation on top for other breaches of employment law - which any competent employment law solicitor is well able to identify.
Employees who use an experienced employment solicitor can nail an employer to a cross that he/she cannot get off.
An employer who used an experienced employment solicitor where the employee is not equally represented will more likely than not be able to frustrate any employee claim.
The National Minimum Wage Act is a quagmire of legislation where, without an experienced employment solicitor to represent an employer or an employee, the potential for being “screwed” is high on the agenda.