Illegal working has become a political hot potato in recent years. Legislation is catching up with the need to control the practice and it’s made contravening the law very expensive for employers caught out. Chloe Themistocleous, an associate at law firm Eversheds Sutherland, explains what you need to know [wlm_nonmember][…]
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As we approach Brexit, employers – now more than ever before – need to ensure that their employees have the right to work in their business. In 2016, both the offences and penalties relating to the employment of illegal workers broadened significantly, meaning mistakes can be extremely costly for a business both in terms of finances and reputation.
Concerns over illegal working are not new. There are countless reports of UK authorities finding illegal workers in a diverse range of business sectors – from nail bars to restaurants and the construction industry – following specific clauses being put into the Immigration Act 2016. But while it’s less likely that a driver working for a coach or bus company will be an illegal worker, the sector still needs to be aware of the risk of employing support staff without the right to work in the UK.
Legal obligations
It is unlawful to employ someone who does not have the right to live and work in the UK, or to employ a person who is working in breach of any conditions imposed upon them by the Home Office. Employers have an obligation to prevent any form of illegal working.
To comply with that obligation employers must carry out right to work checks on all prospective employees before their employment begins; conduct follow-up checks on employees who have a time-limited permission to live and work in the UK; keep records of all the checks carried out; and not employ anyone it knows or has reasonable cause to believe is an illegal worker.
Three stage check
The simplest way for employers to stay out of trouble means following a three-stage check.
The first step involves obtaining the employee’s original documents proving their right to live and work in the UK. Next, those documents that relate to the individual in question should be checked to see if they are original, unaltered and are valid. Lastly, they should be copied and kept securely with a record of the date of the check and a date for any follow-up check that may be required.
What original documents should be used?
Different documents must be used for employees who have a permanent right to work in comparison to those who have a time-limited right to work. A full list can be found in the Home Office’s Employer’s guide to acceptable right to work documents, available from: https://bit.ly/1lbaGUx.
The most common documents for someone with a permanent right to work are:
- A passport showing the holder is a British citizen or a citizen of the UK and colonies having the right of abode in the UK;
- A registration certificate or document certifying permanent residence issued by the Home Office to a national of a European Economic Area country or Switzerland;
- A permanent residence card issued by the Home Office to the family member of a national a European Economic Area country or Switzerland; or
- A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
The most common documents for persons with time-limited rights to work are:
- A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question;
- A current biometric immigration document issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question; or
- A current immigration status document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
What if the documents are fake?
Employers are not expected to be experts in identifying false documents, however they could still be liable to fines if it is ‘reasonably apparent’ to a person who is not trained in checking documents that the document is a fake.
Employers are therefore urged to carefully examine documents when performing checks but are not required to use any technological aids. The documents the employer checks should be originals not copies, and the employer should ensure they have not been tampered with in any way. Equally, employers should satisfy themselves that the documents provided relate to that employee, for example checking the picture on photo ID is a true likeness.
Penalties
If employers breach their obligations they may now be liable for both a civil penalty and they could also be found to have committed a criminal offence. The penalties are harsh.
Civil penalties
An employer will be subject to a civil penalty if it is found to employ someone who does not have the right to undertake the work they are paid to do. The maximum fine is £20,000, which doubled from that levied in 2014.
hen considering the level of fine to impose, a number of factors will be considered:
- When employment commenced (the fine may be lower if the penalty for employing illegal workers was lower when the employment commenced);
- If the employer has committed previous offences in the last three years;
- What measures the employer took to check the right to work;
- If the employer reported suspected illegal working to the authorities;
- If the employer cooperated with the authorities; and
- If the employer has an effective document checking process in place.
If an employer fails to pay a fine in full within 28 days, enforcement action can be taken in the county court. Within the 28-day period, the employer can also apply to pay in instalments or lodge an appeal.
It’s also possible for an employer to avoid a civil penalty if it can show that it undertook the three-stage check noted earlier. If the employer has not retained copies of the documents, it is highly unlikely it will be able to avoid paying the penalty imposed.
Criminal convictions
A criminal offence will be committed if the employer knew or had ‘reasonable cause to believe’ the employee did not have the appropriate immigration status. After a conviction, an employer can receive an unlimited fine or imprisonment of up five years (or both). The term of imprisonment has more than doubled in under recent legislation.
Site closure
The Chief Immigration Officer also has the power to issue an illegal working closure notice, to effectively close a business premises for up to 48 hours while they apply for an Illegal Compliance Order if the employer has either been convicted of employing an illegal worker, has been required to pay a civil penalty within the last three years, or at any time if a civil penalty remains unpaid.
An illegal compliance order may be issued for up to 12 months, and can include conditions prohibiting or restricting access of people to the premises, requiring a specified person to carry out right to work checks, and to produce documents following such checks in order to prevent illegal working.
What happens to the worker?
While employers face serious sanctions, a worker who is found to be working illegally can now also be prosecuted for illegal working and/or removed from the UK, as well as having their earnings seized because they are the proceeds of crime. Further, thousands of drivers have had their driving licence revoked in an attempt to stop them being used to apply for jobs and open bank accounts.
What are the chances of getting caught?
Immigration officers now have increased powers to enter business premises to search for documents and to seize and retain evidence in relation to any potential offence. Immigration officers may visit a business on their own initiative if they suspect a business is employing illegal workers or are acting on tip offs from the community.
With high fines, potential for criminal convictions and negative publicity, employing illegal workers or not undertaking proper checks is unlikely to be a risk many businesses want to take.
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