Article 5B Excusal from paying civil penalty: further requirements relating to extension of liability under section 15 of the 2006 ActF1
Paragraph (2) applies where a person (“A”)—
is contracted to provide, or arrange for the provision of, work or services and enters into a contract with another person (“C”) under which C is to provide or arrange for the provision of the work or services and C enters into a contract with an individual (“B”) who is to provide the work or services, or
is an online matching service who provides the details of another person (“C”) who is a service provider to potential clients or customers and as a result of being matched by A, C enters into a contract with a client or customer for the provision of work or services and into a contract with an individual (“B”) who is to provide the work or services.
Where this paragraph applies, the requirements in relation to the employment of B for the purposes of section 15 of the 2006 Act (excusal of employer from paying a penalty: prescribed requirements) are that—
before commencement of the work or services by B or, where B substitutes another individual to provide the work or services, that other individual, A has produced a written statement which requires the following terms to be included in the contract between A and C—
a requirement for C to comply with the requirements for excusal from paying a penalty in relation to B or the other individual (as the case may be);
a prohibition of C from entering into a contract with another person for that other person to arrange for the provision of the work or services by an individual unless—
A has consented in writing, and
that other person who is to enter into a contract with the individual complies, in respect of the individual, with the requirements for excusal from paying a penalty;
permission for A, whenever A so requests, to conduct audits of C’s compliance with—
the requirement referred to in paragraph (i), and
the prohibition referred to in paragraph (ii);
enforcement provisions against C where—
contrary to section 15 of the 2006 Act, C employs an adult subject to immigration control in the circumstances set out in subsection (1) of that section, and
C is not excused from paying a penalty by virtue of subsection (3) of that section;
the requirement for C to include in its contract with B enforcement provisions against B where C knows, or has reasonable cause to believe, that B is committing an offence under section 24B of the Immigration Act 1971 (illegal working);
the requirement for C to cooperate with any investigation by the Secretary of State relating to the employment or suspected employment by C of an adult subject to immigration control contrary to section 15 of the 2006 Act by providing the following information to the Secretary of State—
in respect of the chain of contracts ending with and including the contract between C and B, the make-up of the chain and the purpose of each contract in it,
in respect of each contracting party other than B in the chain of contracts, its official name, whether it is a sole trader, body corporate or unincorporate or partnership and, if it is a partnership, the type of partnership, its registered address or, where it does not have one, its principal place of business, and, if applicable, its company registration number, and
any other information which the Secretary of State considers is, or may be, relevant to the investigation; and
for the duration of B’s employment, A maintains systems and processes that ensure that the individual who is providing the work or services is the same individual.
Nothing in the articles referred to in paragraph (5)(c) applies to A in the circumstances set out in paragraphs (1) and (2).
Where a person (“D”) employs an individual (“E”) to provide work or services, the requirements in relation to the employment of E for the purposes of section 15(3) of the 2006 Act are that—
where there is a clause in the contract of employment which permits E to substitute another individual (“F”) to provide the work or services—
D complies, in relation to F as well as E, with the requirements for excusal from paying a penalty,
D prohibits F from providing the work or services before D has complied with those requirements in relation to F, and
D has included in the contract enforcement provisions against E—
where D or E knows, or has reasonable cause to believe, that F is committing an offence under section 24B of the Immigration Act 1971, and
where D is unable to meet the condition in paragraph (i) due to F’s failure to cooperate with D; and
for the duration of E’s employment, D maintains systems and processes that ensure that E, or, as the case may, be F is the same individual.
In this article—
a reference to “work or services” includes part of the work or services;
“enforcement provisions” means provisions to prevent illegal working which may include but are not limited to provisions for the suspension or termination of the contract; and
“the requirements for excusal from paying a penalty” means the requirements set out in—
articles 3(1), 5 and 6,
articles 3A, 5A and 6A(2),
articles 4, 5 and 6,
articles 4A, 5 and 6, or
articles 4B, 5 and 6(2).