HMRC penalties for underpayments of the national minimum wage (NMW) or national living wage (NLW) to staff who have transferred under the Tupe regulations were previously imposed on the old employer. This applied for all, or any part of the penalty, that applied to underpayments taking place before the employee(s) transferred to the new employer.
Since 2 July 2018, the HMRC have changed their approach in the application of penalties. From this date, the HMRC will apply the whole NMW liability, including the repayment of any underpayment and the payment of a penalty fine, to the new employer. This will apply even where all, or part, of the liability for underpayments arose before the transfer took place.
More information on NMW entitlement and enforcement can be found on our employment law page.