Despite the Government's tougher stance on immigration, sometimes the only candidates with the required skill set are not UK nationals. Nicola McMahon describes the precautions to take when employing foreign workers.
Employers often find themselves in situations where the best candidates for a job, or indeed the only candidates with the required skill set, are from outside the UK. In these circumstances, there are a variety of legal and practical issues which must be addressed prior to such individuals commencing work in the UK.
Immigration matters are obviously relevant in these situations and should be a primary consideration. British citizens, Commonwealth citizens with the right of abode in the UK, nationals from the Channel Islands and the Isle of Man, nationals from the EEA countries (except Bulgaria and Romania) and Switzerland have an unrestricted right to live and work in the UK.
Therefore, once an employer is satisfied that an individual falls within one of these categories, they can proceed with other arrangements relating to their employment.
Nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia (known as A8 Nationals) are permitted to work in the UK, but are required to register with the Border Agency within one month of commencing employment.
Again, individuals from these countries can start work without further action, but the employer will need to assist them by providing evidence of employment, such as their contract of employment or a letter from the employer to ensure they can make the necessary application in the correct time period and continue to work in the UK.
Individuals who do not fall into one of these categories will not have an automatic right to work in the UK, so can only do so if they have a visa or other status which gives them the necessary permission.
Therefore, before time and resources are spent on other arrangements, the employer should investigate whether the individual has a visa, or has the ability to obtain a visa and entry clearance, which would allow them to come to the UK and work.
There are a range of possible visa categories which could be of assistance, depending on the individual's particular circumstances and the work that they would be doing in the UK. Advice should be sought on these matters as the penalties can be onerous.
PENALTIES FOR ILLEGAL EMPLOYMENT
Civil penalties will be imposed on any employer who is discovered to be employing an illegal worker, either knowingly or having failed to carry out the required pre- and post-employment checks. Employers can establish a statutory excuse against payment of a civil penalty by undertaking checks of specified original documents provided by prospective employees that give evidence of their entitlement to work in the UK.
Government-issued guidance is available providing more detail on these checks to be undertaken by employers prior to taking on new employees, regardless of whether they are from inside or outside the UK, to ensure equal treatment for all.
There is no protection against civil penalties if an employer knows it is employing someone illegally and, in such a situation, an employer may also be liable for a criminal offence carrying a maximum sentence of two years imprisonment or an unlimited fine.
It should be remembered that, regardless of origins, employees from overseas will obtain full UK employment rights. Employers should therefore ensure that they pay the national minimum wage to all staff and adhere to the Working Time Regulations and non-discrimination legislation, including ensuring that employees from overseas are paid at the same level and receive the same rewards as UK nationals performing the same role.
Some overseas nationals may have to register with the police within seven days of arrival in the UK and then update the police on any changes of address or visa permissions. This requirement will either be stated on the relevant individual's visa documents or imposed by Entry Clearance or Immigration Officers upon arrival.
Most overseas driving licences are recognised in the UK. However, individuals with foreign licences are only permitted to drive in the UK for between 12 months and five years, depending on their country of origin, after which they must exchange their licence at the DVLA for a UK licence and, in some circumstances, may have to retake their driving test.
From a practical perspective, employers should also consider whether they wish to provide support for the following, depending on the level of seniority of the employee:
â- Payment of travel costs, return trips home and relocation expenses, including shipping costs.
â- Provision of temporary accommodation upon arrival in the UK.
â- Assistance with job searches and school places for partners and children.
â- Assistance with finding permanent accommodation.
â- Assistance with banking matters - eg, opening new accounts in the UK.
â- Culture and language training for the individual employee and for managers and colleagues, if appropriate.
â- Integration support, which could take the form of support from a relocation agency; "buddying up" with a colleague who lives in the same area and who could provide local information - eg, doctors, dentists; or for an employer with other ex-pat staff, an informal network of colleagues with personal experiences of moving to the UK.
Nicola McMahonis a solicitor at Charles Russell LLP