Over the last decade there has been a steady flow of migrant workers looking for work in the UK and many finding it in pubs, clubs and hotels. From 31 December 2013 Romanians and Bulgarians will be added to the list of European countries whose people can work freely in the UK. However, penalties are severe for employing illegal migrants and it is imperative that you adopt procedures to ensure that you stay on the right side of the law when employing workers from Eastern Europe.
Restrictions on the right for Romanians and Bulgarians to work in the UK, when they became EU members on 1 January 2007, could only be imposed for 7 years – so these will be lifted at the end of December 2013.
Because restrictions were put in place to stem the immigration tide, employers should expect the law to be enforced rigorously. A civil penalty of up to £10,000 can be imposed in respect of each illegal migrant worker that you employ. In more serious cases, particularly where migrants are deliberately used, there is a criminal offence which carries a maximum sentence of 2 years imprisonment and/or an unlimited fine. Therefore you should be careful to check and keep copies of the necessary documentation to avoid incurring penalties.
Workers from Bulgaria and Romania
The restrictions on Bulgarian and Romanian workers will not be lifted until the end of this year. In the meantime a Bulgarian or Romanian worker will need to obtain an accession worker card before they start work for you unless they are exempt from the need to do so (see below). You may also need to obtain a work permit for them before they can apply for the accession worker card. You should not allow a worker to start work for you until they have received their card.
As an employer it is your duty to ensure that an employee has the right to work in the UK by checking their documents before you employ them. You will then have a statutory defence if it turns out ultimately that the employee is an illegal worker. In order to have a statutory defence before the worker starts work you must see and keep a copy of an acceptable document which shows that the worker has the right to work in the UK.
If a Romanian or Bulgarian worker tells you that they are exempt from authorisation then you will need to see a valid exemption registration certificate as evidence of this and you will need to keep a copy of this.
If you employ a worker illegally then both you and the employee will be guilty of a criminal offence. You may be fined up to £10,000. The fine ordered is payable for each person found to have been employed illegally.
Avoiding race discrimination issues
- It is essential to check that an employee is entitled to work in the UK however, this should not be done in a discriminatory way; eg: 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.
- 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.
- Monitor your recruitment practices taking account of equality issues.
- Adopting a policy of favouring immigrant workers over local staff may result in conflict with the workforce and an increased risk of harassment or discrimination claims.
Our article ‘Authorities crack down on illegal workers’ gives more detail about the checks you must undertake
The UK Border Agency website includes a user friendly guide to assist employers to check that they are not employing workers illegally.
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.