IT SEEMS THAT hardly a week goes by without news of another ‘round-up’ of illegal workers somewhere in the country. Following one such recent swoop in the Midlands, Home Office Minister Beverley Hughes was reported as commenting: “Illegal working will not be tolerated – it encourages illegal immigration, exploits the workers themselves and undermines legitimate business competition. Our increasing enforcement activity in the Midlands, and around the country, should send a clear warning to those deliberately employing illegal workers that they will be caught and prosecuted.”
WHAT EVERY EMPLOYER SHOULD KNOW: Under Section 8 of the Asylum & Immigration Act 1996, it is a criminal offence to employ a person aged 16 or over who is subject to immigration control unless that person has current and valid permission to be in the UK, and that permission does not prevent them from taking the job in question.
While the government’s Immigration & Nationality Directorate stresses that ‘employers are not expected to act as immigration officers’ there is a clear onus on every employer to perform certain basic checks before accepting anyone as an employee, and to maintain records of these checks for a certain period of time after the employment finishes. At the same time the IND is careful to warn employers not to fall foul of the Race Relations Act when applying these checks, so there is a delicate balance for the employer between establishing their own defence against charges of employing illegal workers, and discrimination against workers on the basis of their origin or appearance.
WHAT EVERY EMPLOYER SHOULD DO: In essence, all employers are required to seek evidence of the identity and entitlement to work of every potential employee. One basic method of establishing apparent entitlement to work is the receipt of a ‘documented National Insurance Number’. Examples include paperwork issued by a previous employer, the Inland Revenue, the Benefits Agency, the Contributions Agency, etc, and which states the National Insurance number of the named applicant. Among the range of ‘acceptable’ documents are: P45, P60, pay-slip, and NINO cards. However, please be aware that any document which merely refers to a ‘temporary’ National Insurance number is NOT acceptable.
The employer is responsible for satisfying themselves that the person presenting such entitlement to work is actually presenting a document that refers to the applicant him or herself. The easiest way of doing this is to ask for a passport or other official document bearing the same name and likeness of the applicant, preferably supported by a birth certificate. Whichever documents are used, they should be originals, not merely photocopies, and employers are expected to make their own copy and keep this safe, as proof of having performed these basic checks. You then need to keep these copies while the employee works for you, and for at least six months after they cease to work for you. Part two of the P45 must, in any event, be retained for at least three years after cessation of employment in order to comply with Inland Revenue requirements.
SO WHO’S LIABLE? The issue of who is the ‘employer’ is a simple question of fact. It can be an individual (ie sole trader), a partnership or a limited company. In the case of limited companies, the ‘employer’ may include any of the directors, senior managers or other officers of the company, or those who act in such a capacity. Liability can be extended in person to any senior person within the organisation.
Having always advised our own clients that they should not even consider employing casual staff of any description, we would extend that advice to all employers. Quite apart from the traditional problems with the Inland Revenue, the issue of illegal working is now being seriously addressed by the authorities.
The penalties for getting it wrong are severe. Upon conviction in the Magistrates Court the maximum penalty is £5,000 – per employee. And a criminal record. And even if the fine doesn’t put you off, the criminal record won’t look too good on your CV if you happen to be the director of a large retail chain.
For further information call IND on 0114 259 4074 and see the website www.workpermits.gov.uk.