We have just concluded an investigation by HM Revenue & Customs (HMRC) into minimum wage compliance at our small group of restaurants. The investigation has taken nine months, with HMRC conducting a very thorough and intense review of our whole business. HMRC looked at payroll records and rota records to check that what was on the rota was actually then paid.
Officials interviewed staff to check that the times on the rota were the actual times worked, and that we weren’t removing worked hours. HMRC fully investigated all of the areas where it hoped it might find something wrong. Did we uplift to new rates on the right date? Did we uplift rates when people moved age brackets? Did staff provide their own workwear that required us to pay above the minimum wage? Did we correctly pay people when they moved from hourly to salaried?
It felt a bit like being followed by a police car; you think you are doing everything right, but then start to doubt yourselves the longer the police car follows you, thinking through everything you might be doing wrong and conducting a mental checklist. Over the course of the investigation, we started to doubt ourselves and thought we might have overlooked something. Had we paid people correctly when they transferred between sites? Were our contracts correct about the place of work? Had the S4 system worked correctly in all cases, or had we incorrectly put someone’s birthday into the system and underpaid them? All those things kept us slightly worried.
I understand that HMRC investigations are often triggered by reports from former employees. Of course, these reports may stem from genuine concerns or misunderstandings. While we can’t be certain of the reason behind our investigation, we approached the process with full transparency and, regardless of the origin, it served as a valuable opportunity to really test our compliance system.
I was, of course, very relieved to finally get a clean bill of health after its latest rounds of checks. Given the time it took, I had half expected HMRC to never close the investigation and leave us nervously hanging in the air forever. It was clearly very disappointed. I think from the way the officials behaved, they normally find an error somewhere, and they know where to look. Without a system, I would be sure that we would have missed a birthday somewhere, which I think would be the most likely error.
But the way officials looked at any change from hourly to salaried suggests that this is also a common place for operators to fall. The time they spent checking that the rota’d hours worked were the actual hours worked by the employee also suggests that is a difficult area for our industry.
The fine structure for any failure is a maximum of £20,000 per worker, and any errors investigated need to be paid back over the six years HMRC can go back in its investigation. I assume that when it finds one fault, it will then look at whether that fault is repeated across the whole employee base. The minimum fine is £100 per employee, but even if you have, say, ten employees and a staff turnover rate of 100%, then over six years, you may well have had 60 staff, so you are already at £6,000. Scary stuff.
So, what are the actions we can all take? Never having an aggrieved worker seems impossible. We will all typically take on someone who doesn’t work out and is unhappy about being dismissed, so really it is about having excellent process and procedures to ensure that the legislation is complied with.
I am interested in how HMRC might determine any failures in hours worked versus hours paid, but luckily, we won’t get to find out. As the minimum wage increases, a higher proportion of staff will be paid the minimum wage, and as such, our risks and potential fines go up. I hope HMRC won’t be back to visit us soon, but hopefully this may serve as a reminder that we all need to make sure we have all the right checks in place.
Alastair Scott is chief executive of S4labour and owner of Malvern Inns