Who is responsible for providing National Minimum Wage pay information in the context of a TUPE transfer?

Employers are required, under the National Minimum Wage Act 1998 (“Act”), to maintain pay records and, if requested to do so, to produce such information to their workers.  A failure by an employer to comply with its obligation to produce pay information within 14 days of a request can result in an Employment Tribunal making a declaration and award against the employer of up to 80 times the national minimum wage rate.

The Act expressly provides that in the event of a cessation of employment, the employee should seek such information from their former employer in respect of pay during that period of employment.

In a recent decision, the Employment Appeal Tribunal (“EAT”) clarified that because an employee’s employment automatically transfers and does not terminate in the context of a TUPE transfer, where an employee TUPE transfers to a new employer (the transferee), it is that employer which has the obligation to provide pay records, not the employee’s former employer (the transferor).

This decision highlights the need (particularly in the context of an outsourcing) for contractual obligations on a transferor to provide the transferee with all necessary information in relation to the transferring employees.