Employers in the hospitality industry will be alert to the need to check the right to work of all employees and to have robust illegal working prevention systems in place. This is particularly challenging when HR is decentralised, with recruitment decisions being made by managers on site and where there is natural turnover within the workforce.
Home Office data reveals that the hospitality industry features disproportionality in the published lists of companies who have been issued with civil penalties for employing people who are working illegally. If a business is not keeping the required right to work records then a Home Office enforcement visit is likely to result in heavy fines. Many businesses in the sector take their responsibility to prevent illegal working seriously, with thorough systems in place for ensuring that the people they employ are permitted to work.
This article looks at what happens when you are doing everything right, and the Home Office still takes enforcement action against you.
We recently acted for a national chain of pub restaurants with key locations in London and the South of England. They were confident that their right to work compliance was faultless. Immigration Officers contacted them to request right to work records. The first dilemma for the company was how to provide this data without breaching GDPR. It was agreed that a secure online data room would be set up for a limited period of time with very limited access. Immigration Officers reviewed the wealth of right to work checks and confirmed that the company was compliant with current right to work legislation.
Despite this they received an unannounced site visit from an Immigration Enforcement Team, followed by a further unannounced site visit from a different Immigration Enforcement team who also requested right to work records. It transpired that the two teams were unaware of one another’s action, which caused considerable disruption on site.
Bearing in mind that our client had been fully co-operative and that the Home Office had analysed their records and were satisfied that they were fully compliant, the next action was heavy handed. A meeting was arranged, which three Immigration Officers attended. The Home Office considered that some employees had been working with forged documents. They acknowledged that the employer could not be expected to be an expert in identifying forged documents and that the quality was good enough to dupe even a vigilant employer. The Home Office required that our client arrange a “covert training event” which would involve circa 60 members of staff being asked to attend a mock training event. The Home Office would in fact be in attendance, at which point the Home Office would arrest and detain any suspected illegal workers.
Our client expressed their intention to cooperate and reiterated their understanding of their duty to prevent illegal working, but they were left gravely concerned that the action proposed by the Home Office would be disproportionate to the end in mind. They were concerned about the impact on their existing, legal, workforce and that the proposed Home Office action would fundamentally undermine the relationship of trust between them and their legal employees. They were also concerned about the potential for industry wide reputational damage.
With strong representations we resisted the Home Office’s proposed course of action. They backed down and agreed to take no further action.
What can other employers in the hospitality sector take from this example?
- Be prepared
Recognise that the sector is a target for illegal working and Home Office enforcement action and ensure that your right to work records and processes are fully compliant.
- Co-operate with the Home Office
If you do receive an enforcement visit, do co-operate with the Home Office but perhaps remind them that their own policy requires that enforcement action should be undertaken in a manner which is low key and discrete and that any enforcement action and investigation should be undertaken sensitively and with full regard of the impact on the business and their legal employees.
- Take control of the process
While you do wish to co-operate, you do not have to agree to every action the Home Office proposes. You need to balance your duties to the Home Office with your responsibility for your business and your employees. Ensure that the Home Office has contact details for one key person within the business who will control the process. Tell them how you will provide right to work data to ensure that you retain control of this. Agree a schedule for any further visits and resist any action which you consider to be disproportionate and unnecessary.
- Retain evidence of any agreed action
Any enforcement action must strike the right balance between the strength of Home Office intelligence, the community impact, reputational risk to the business and the best interests of employees. The Home Office are required to undertake an Enforcement Planning Assessment which should assess these factors prior to any visit or operation. Request a copy of this before any formal meeting is arranged. Ensure that any formal meeting actions are recorded. You may have a representative attend meetings with you or you may make a record of key actions agreed during a meeting and ask the Immigration Officer to sign these to confirm your mutual understanding.
For more information or advice please contact Emma Brooksbank
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.