A recent case resulted in two restaurant bosses being disqualified from becoming directly or indirectly involved in the promotion, formation or management of a company for 8 years for employing illegal workers. Officials commented that the ban should ‘act as a warning to other employers who are flouting the law.’
We have previously reported on a case in which two Indian restaurants in Essex faced fines of up to £20,000 after illegal workers were discovered in raids revealing two Bangladesh men who had overstayed their visas. The businesses now both face a potential penalty of up to £20,000 unless the owners can demonstrate that appropriate pre-employment checks were carried out, such as seeing a passport or Home Office document.
2013 also saw a spate of arrests as the UK Border Agency cracks down on illegal workers in the restaurant trade in towns and cities across the country. In most of these cases the workers from overseas (including Bangladesh, Egypt and Palestine) had overstayed their visas and had no right to work in the UK. Several had entered the country illegally. In every case the restaurants involved have been warned they face a fine of up to £10,000 per worker; in one case in Leatherhead 5 illegal workers were involved, potentially presenting the business with a bill for £50,000, whilst in Aberdeen earlier this year, one restaurant has been fined £25,000 in civil penalties and two others a total of £13,750.
An expensive risk to take
With its high turnover of staff, the hospitality and leisure industry is very attractive to migrant workers -and indeed the industry relies heavily on them. However, the examples above demonstrate that you must be careful about who you employ. Illegal working both undercuts British workers and may cause dishonest employers to take advantage by paying poorly and ignoring health and safety measures. The UK Border Agency carries out regular intelligence-led investigations and takes firm action against employers who flout the law. At up to £10,000 per worker you employ illegally, it doesn’t take much for this to add up to a very significant fine.
The key points to note are:
- Employers face a civil penalty of up to £10,000 for each illegal worker they employ.
- Employers will have a statutory excuse if relevant documents are checked before a potential employee starts work.
- Employers must check the validity of documents provided by prospective employees and comply with verification, retention, copying and recording requirements.
- There is also a criminal offence of knowingly employing an illegal worker, the penalty for which is a custodial sentence of up to 2 years’ imprisonment and/or an unlimited fine.
- A company can be liable for knowingly employing an illegal worker where an individual, who has responsibility within the company for an aspect of the employment, is aware that the employee is working illegally. A director or manager will be regarded as having committed the offence personally if the offence was committed with their consent or connivance.
The legislation applies only to employees and not the self employed, agency or contract workers. However be aware that a casual worker may be considered an employee even where there is no written contract. Where there is any doubt, you should look to establish the defence for that person rather than risking conviction for employing an illegal worker.
If you carry out the required document checks correctly before you employ a worker then you will have a “statutory excuse” against payment of a fine if it turns out that the individual is an illegal worker after all.
There are 2 lists of documents which can be checked. The documents on List A show that the employee has an ongoing right to work in the UK and if you check the document correctly it gives you a statutory excuse for the duration of the persons work with you. Documents on List B show a right to work in the UK for a limited time and to be covered by the statutory excuse you must repeat the document check at least every 12 months.
The lists are set out in the UKBA Employer guide together with pictures of the relevant documents.
Verification and copying requirements
You are required to take certain steps in relation to the documents you are required to see before an employee starts work with you:
- Accept only an original document;
- Take all reasonable steps to check the validity of the document;
- If the document contains a photograph you must be satisfied that the photograph is a photograph of the prospective employee;
- If the document contains a date of birth you must be satisfied that this is consistent with the appearance of the employee;
- Take all reasonable steps to check that the employee is the owner of the document;
- Check that entry and expiry dates have not been passed;
- Check any endorsements to see that the person can do the type of work that you are offering;
- Copy the document and retain the copy securely for not less than 2 years after the end of the employment;
- If the document is a passport or other travel document you must copy the following pages in a format which cannot be subsequently altered: the front cover and any page containing: the holder’s details including nationality, the holder’s photograph, the holder’s signature, the date of expiry, and a UK Government endorsement indicating that the holder has an entitlement to enter or remain in the UK and undertake the work in question.
- If the document is not a passport or other travel document you must take a copy of the whole document in a format which cannot be subsequently altered.
If you have partially complied with these requirements then the penalty will be reduced. This will be the case if you have, for example, copied one of two documents required or have copied only part of a specified document. However, the statutory excuse for the penalty will not apply if you know that you are employing an illegal migrant.
You will need to undertake repeat document checks at least once a year for employees who have limited leave to enter or remain in the United Kingdom, for the statutory excuse to remain valid. Each time these are carried out they must follow the specified steps and you must keep a record of the date of such checks.
Biometric Residence Permits
Biometric residence permits have been issued to non-EEA nationals since 2008 and are now in wide circulation. These BRPs make document checking simpler for employers. A BRP is the size of a credit card and holds a person’s fingerprints and photograph. You can carry out an online check on the validity of a BRP and the person’s right to work in the UK. Details of how to check a person’s right to work using their BRP can be found HERE
Right to Work Checklist
The UKBA employer’s guide includes a Right to Work Checklist which is ideal to download and complete and keep on file each time you take on a new employee so that you know that you have completed the required checks each time. See Appendix A
Knowingly employing an illegal migrant
There is a separate criminal offence of “knowingly” employing an illegal worker. This offence carries a custodial sentence of up to 2 years imprisonment and/or an unlimited fine. A company can be liable if a person who has responsibility within the company for an aspect of the employment knew that the employee was working illegally. For example, if a bar manager at one of your managed houses knowingly employs an illegal worker the company will be liable.
A director, officer or manager will be regarded as having committed the offence as well as the company if the offence is committed with their consent or connivance. The person liable will need to have been involved in the overall management of the company. Clearly this will be of great concern to directors in the pub trade. As a director or manager of a managed house pub company you may feel concerned that you have insufficient control over whether bar managers are recruiting illegal immigrant bar staff. The thought that you could be prosecuted personally for consenting to employ illegal workers is a real but daunting one. Directors need to ensure that they and the company are protected by having the right policies and procedures in place – see good practice below.
Good practice – protecting yourself
To avoid having to pay severe penalties under the new measures you should check that all workers are legal and be seen to be doing so. You should consider adopting the following good practices:
- Build the checks set out above into your recruitment procedure and implement them in a way which is not discriminatory.
- Check documents before an employee starts work and make the production of such documents a condition of employment.
- The best way of directors protecting themselves and the company from liability is to have a central recruitment policy, endorsed and monitored by directors, which details the checks to be carried out and requires those responsible for recruiting to carry these out. The policy should state that employees will be disciplined for not carrying out the relevant checks and summarily dismissed for knowingly employing an illegal worker. The implementation of the policy should be reviewed and monitored regularly. Provided good records are kept directors, officers and managers should be able to show that they did not consent to the employment of an illegal worker.
- Record keeping is very important in proving that you have checked the relevant documents and carried out the required verification and copying. If you cannot produce a record of having carried out a check prior to recruitment you will be treated as having carried out no check at all and the full penalty will be payable.
Avoiding race discrimination issues
It is essential to check entitlement to work in the UK. However, this should not be done in a discriminatory way – so do not ask only those who appear to be foreign whether they have the right to work in the UK. Ask all job applicants the same question at the same stage of the recruitment process and don’t assume a person is an illegal worker if they can’t produce a document. Suggest they go to a Citizens Advice Bureau for further advice on what to do. Finally, monitor your recruitment practices taking account of equality issues.
A code of practice on avoiding discrimination issues while preventing illegal working can be found HERE
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.