Are all your employees entitled to work here?
In an industry which has traditionally seen a large proportion of short-term and ’casual’ workers, the recent publicity involving the Attorney General, Baroness Scotland, and the employment status of her Tongan housekeeper should serve as a reminder to all employers that they have a statutory responsibility to prevent illegal migrant working.
The law in this case is the Immigration, Asylum and Nationality Act 2006, which came into effect on February 28, 2008. It basically sets out who is entitled to work in the UK, what checks an employer is required to undertake before employing any worker, and the penalties for failing to perform such checks.
At this point it’s important to remember that the law imposes civil penalties simply for failure to carry out the required checks (or failure to provide evidence that those checks were in fact performed), but that even more severe criminal sanctions apply where employers are guilty of knowingly employing workers who don’t have the right to work here. As with all things ’legal’ we can only try to alert you to the existence of the problem, point out some particular danger areas, and recommend that if you have any doubt as to your particular circumstances, you should seek expert advice.
Racial Discrimination claims
If the penalties for failing to establish an employee’s status seem severe, remember that if you’re found guilty of racially discriminatory employment practices you could face unlimited fines. The simple rule therefore is to apply the same employment status checks for ALL employees regardless of their race, claimed origin or appearance.
What you need to check
The 2006 Act features two lists of documents that employers should check. In some cases a single document is sufficient, in others a combination of documents from both lists is required.
List A documents (things like a full UK passport, or an official Home Office/UK Border Agency residence permit) basically show a person’s statutory right to live and work in the UK without time limit.
List B documents show permission to work but with time (and other) restrictions such as a Home Office Work Permit.
When the applicant brings their documents to you, satisfy yourself that the document(s) are valid and genuine, and have not been tampered with.
Check that any photographs and birth dates on the documents match the applicant’s appearance.
Check information in the job application against the documents to ensure the details match up.
Check that the document(s) allow the worker to do the work on offer.
Genuine or not?
An employer isn’t expected to be an expert on counterfeit paperwork other than where documents look obviously tampered with (the use of Tippex is always a bit of a give-away). Or they seem to conflict with each other you’re not expected to recognise more sophisticated forgeries. However if something simply doesn’t feel right or just seems to conflict with everything the employee’s telling you during their interview, and you’re not sure whether or not a document is valid, call the Home Office UK Border Agency Sponsorship and Employers’ Helpline on Tel 0300 123 4699.
This is where the Attorney General apparently forgot the law and it cost her a £5,000 civil fine. You must keep a record of the documents your employee provided to support their entitlement to employment. You should photocopy and/or scan all of the documents, and any scanned files should be stored on a permanent medium such as a non-rewritable CD ROM.
With passports, the information that needs to be copied includes: the front cover; the expiry date; any photographs and the signature; all the personal details pages; and pages containing a UK government stamp, or endorsement allowing your employee to do the work you are offering. Other documents should be copied in their entirety. You’ll need to keep all of these for at least two years after the worker leaves your employment.
Having a record of every copied document will help you establish a ’statutory excuse’ if the UK Border Agency detects anyone working illegally for you. If you lose any records, the Agency might look at your normal recruitment procedures when considering if you have established a statutory excuse eg if you have a consistent practice of copying documents for each worker.
Remember that if you’ve taken on an employee under the List B criteria, it means they only have a right to work here for a limited time. In this case you have to re-check all of their documentation at least once every 12 months, keeping a note of the dates of each check. Failure to perform and record these re-checks renders you liable as if you’d never done any in the first place.
If the employee won’t provide the required documents for re-checks, seek legal advice.
While there appears to be no explicit requirement for the employer to report the employee to the UK Border Agency in such cases, the Home Office guidelines could be interpreted as implying the expectation of such action. This is a very grey area where the advice of an employment solicitor should be sought urgently.
Penalties for non-compliance
You can receive a civil penalty of up to £10,000 per illegal migrant worker if you do not establish a ’statutory excuse’. In other words, if you fail to undertake the required checks or keep a record of those checks. However, if you know that you are employing a person who is not permitted to work, you will not be entitled to that ’statutory excuse’ and additionally, you could be prosecuted for the criminal offence of knowingly employing an illegal migrant worker. If you are convicted under this offence, you could face an unlimited fine and/or a prison sentence of up to two years.
As we said at the beginning, in this industry employers have often been so desperate to fill vacancies that when it came to staff who were willing to work unsocial hours, they were grateful for what they could get. You can’t do that today you may not get away as lightly as the Attorney General.