Change in national minimum wage penalties in a TUPE transfer situation

HMRC has advised that it has changed its approach to charging financial penalties when enforcing the National Minimum Wage (NMW) where there has been a transfer of employees from one employer to another under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Since 2 July 2018, where there has been a TUPE transfer of employees, all NMW liabilities, including the full financial penalty amount, are being enforced against the new employer (the transferee). The financial penalty is up to 200% of the pay arrears, capped at £20,000 per worker.

HMRC previously charged the former employer (the transferor) all or part of the penalty where it was triggered by arrears that accrued before the employees were transferred under TUPE.

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