Section 37E | Warning notice ^F1

(1)This section applies where the Secretary of State considers that an employer who is required to pay a relevant sum has failed—^F2

(a)in the case of a relevant sum which is to be paid by instalments, to pay an instalment on or before the day on which it is due to be paid, or

(b)in any other case, to pay the relevant sum in full on or before the day on which it is due to be paid.

(2)The Secretary of State may give the employer a notice (a “warning notice”) stating the Secretary of State’s intention to impose a financial penalty in respect of the relevant sum unless before a date specified in the warning notice (“the specified date”) the employer has paid in full the amount so specified (“the specified amount”).This is subject to subsection (3).^F3F4

(3)Where a penalty notice has previously been given in respect of the relevant sum, the Secretary of State may not give a warning notice until—^F5

(a)3 months have elapsed since the end of the relevant period (within the meaning of section 37H) relating to the last penalty notice given in respect of the relevant sum, and

(b)if the relevant sum is to be paid by instalments, the last instalment has become due for payment.

(4)The specified date must be after the end of the period of 28 days beginning with the day on which the warning notice is given.

(5)The specified amount must be the unpaid amount of the relevant sum on the day on which the warning notice is given.

(6)A warning notice must identify the relevant sum and state—

(a)how the specified amount has been calculated;

(b)the grounds on which it is proposed to impose a penalty;

(c)the amount of the financial penalty that would be imposed if no payment were made in respect of the relevant sum before the specified date;

(d)that the employer may before the specified date make representations about the proposal to impose a penalty, including representations—

(i)about payments which the employer makes in respect of the relevant sum after the warning notice is given;

(ii)about the employer's ability to pay both a financial penalty and the relevant sum;

(e)how any such representations may be made.

(7)The statement under subsection (6)(e) must include provision for allowing representations to be made by post (whether or not it also allows them to be made in any other way).

(8)If the employer pays the specified amount before the specified date, the relevant sum is to be treated for the purposes of this Part as having been paid in full.

(9)Subsection (8) is not to be taken to affect the liability of the employer to pay any increase in the unpaid amount between the date of the warning notice and the date of payment.