HMRC has advised that, with effect from 2 July 2018, where there has been a TUPE transfer of employees, all national minimum wage liabilities, including any penalties, will now be enforced against the transferee employer.

Employees themselves have always been able to claim for arrears of wages from their new transferee employer (except perhaps where the transfer arises from an insolvency situation).  Previously, however, HMRC would look to the transferor in respect of any penalties arising from arrears that accrued before the date of transfer.  Following the change, if you are planning to acquire a business or take over the provision of a service, extra due diligence (supported by appropriate warranties and indemnities) should be undertaken in order to cover off this risk.