Commentary New section 22E (withdrawal of penalty notices) Section 22F (replacement of penalty notice)
328.Subsection (2) makes it clear that any new penalty notice must be issued at the same time as the old one is withdrawn, and that the amount of any new penalty must be less than the old one. Subsection (3) states that the new penalty notice must make the differences between the old and new penalty notices clear and indicate the effects of subsections (4) to (7).
329.Subsection (4) provides that if the penalty stated in a withdrawn penalty notice has already been paid when a new penalty notice is served, the excess above the amount specified in the new notice must be returned to the employer with interest; subsection (5) states that the rate of interest applying is that specified in the section 17 of the Judgments Act 1838. Subsections (6) and (7) have the effect that any appeal made by the employer against the old penalty notice will continue to stand against the new notice, but allow the employer to substitute a new appeal against the new notice if he wishes. Subsection (8) makes it clear that an officer may only issue a replacement penalty notice once. Subsection (9) makes it clear that the right of officers to issue two or more penalty notices in connection with the same enforcement notice is unaffected.
330.Subsection (2) of section 46 has the effect that where an enforcement notice is appealed against the tribunal is not permitted to rectify the amount specified in the notice upwards; it also makes clear that an appeal can be made if the notice covered a pay reference period ending more than six years before the notice was served. Subsection (4) ensures that these amendments do not have effect in relation to the agricultural minimum wage in Scotland (since agricultural wages are a devolved matter). Subsection (5) has the effect that the new provisions allowing for the withdrawal and replacement of enforcement and penalty notices will apply to the enforcement of the agricultural minimum wage in England, Wales and Northern Ireland, as well as the national minimum wage.