The penalties for employing staff who have no right to work in the UK are severe, but can be avoided by following careful procedures during the recruitment process, as solicitor Nicola McMahon explains.
Baroness Scotland's recent fine for employing an illegal worker is a stark reminder of the penalties that can be imposed on employers who are employing illegal workers. With the busiest season of the year fast approaching, what's the score?
British citizens, Commonwealth citizens with the right of abode in the UK, nationals from the Channel Islands and the Isle of Man, nationals from European Economic Area countries - except Bulgaria and Romania - and Switzerland have the right to live and work in the UK. Nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia are permitted to work in the UK, but are required to register with the UK Border Agency (UKBA) within one month of commencing employment. Individuals who do not fall into any of these categories do not have an automatic right to work in the UK, and can do so only if they have a visa or other status that allows them to.
Illegal workers are those who have no right to be in the UK at all, have overstayed their visa, have no right to work in the UK or are working in breach of their visa conditions.
Civil penalties will be imposed on an employer who is employing an illegal worker either knowingly or having failed to carry out the required pre- and post-employment checks or having carried out only partial checks. There is also a published list of all employers who have been fined.
Employers can establish a "statutory excuse" against payment of a civil penalty by undertaking checks against specified original documents provided by prospective employees as evidence of their entitlement to work in the UK. Otherwise, penalties can be reduced if an employer reports its suspicions that individuals are illegal workers and co-operates during the UKBA's operations. However, there is no protection if the employer knew it was employing the worker illegally.
The following should form part of an employer's standard recruitment process to obtain the benefit of the statutory excuse:
- Treat all job candidates equally, on the basis of their capability, to avoid any allegations of discrimination on the grounds of race, religion or belief.
- Ensure all offers of employment are expressly subject to the candidate being able to evidence their right to work legally in the UK and in the specific role. If they cannot do so, offers should be withdrawn on the grounds that it would be illegal to employ them.
- Carry out the required document checks before commencement of employment, ie, not on the first day at work.
- Individuals should be asked to provide one or more of the documents evidencing their right to work in the UK. The type of documents that prospective employees will be able to produce will depend on the person's nationality and their UK immigration status. Most passports will confirm whether a person has permission to work in the UK for the duration of employment, but there are lists of other appropriate documents and combination of documents which can be found on the UKBA's website (www.ukba.homeoffice.gov.uk). These documents are divided into two groups, List A and List B, and there are examples showing what these documents should look like.
- Where individuals can provide one of the documents in List A the person is not subject to UK immigration control and the employer will not be required to make any further document checks for the duration of their employment.
- Where individuals produce a document, or combination of documents, from List B, the employer will be required to carry out repeat checks at least every 12 months until either they can provide documentation from List A or they leave employment.
If an employer has suspicions that they are employing an illegal worker, they should:
- Report their suspicions to the UKBA; and
- Investigate fully and consider commencement of dismissal procedures on grounds of illegality. However, employers should take care not to discriminate against employees by taking action without fully investigating matters.
When carrying out document checks employers should:
- Ensure they have seen original documents;
- Satisfy themselves that the document appears valid and genuine;
- Check that photographs are consistent with the person's appearance;
- Check that dates of birth are consistent across documents, and that they correspond with the person's appearance;
- Check that expiry dates of the documents have not passed;
- Check that any endorsements in the documents to ensure the person is entitled to do the type of work offered; and
- Satisfy themselves that the documents are genuine, have not been tampered with, and belong to the person.
- If there are any discrepancies, such as change of name, ensure they have seen the relevant documents, eg, marriage certificate or divorce decree.
- Take photocopies or scans of each document provided and store in non-rewritable format. For passports, this should include the front cover, personal details page(s) and any page containing UK Government endorsements relating to working in the UK.
- Retain copy documents throughout the individual's employment and for two years afterwards.
If an individual cannot produce the documents or the employer has any concerns about the validity of the documents provided, the employer can contact the UKBA's Employer Checking Service on 0845 010 6677 for further advice.
Fines for employing illegal workers can reach up to £10,000 for each illegal worker. As well as the financial cost and public relations ramifications from being on the published list of those employers who have incurred fines, this will also result in significant business disruption. In addition, if an employer knowingly employs an illegal worker, this is a criminal offence carrying a maximum sentence of an unlimited fine and/or two years' imprisonment for directors or officers.
Nicola McMahon, Charles Russell