On 12 July 2016 changes to illegal working offences in the Immigration Act 2016 came into force, introducing tougher penalties for employers found to be flouting the rules.
As the government is keen to crack down on employers who turn a blind eye to employing illegal migrants, with fines of up to £20,000 per illegal worker and possible disqualification for directors, it is more vital than ever for employers to make sure employees have the correct right to work documents. The Home Office also names and shames employers found employing an illegal worker, so your business reputation could be on the line too.
Emma Thompson, employment law specialist at Thackray Williams, advises on how employers can avoid illegal working traps.
Checking workers’ status
Under current law, employers can only legally employ an individual who has permission to live and work in the UK.
To stay on the right side of the law, you will need to ensure that your existing procedures for checking that all new workers have the legal right to work in the UK are being complied with before they start work. Also, you should ask to see the documentation of existing workers and diarise reminders to check the paperwork again when their documents are near to expiry. As long as you make these checks, and take action where necessary, there will be nothing to fear.
To make the checking process work smoothly, it will be easier to ask all workers, regardless of nationality, for the original documents that prove entitlement to work in the UK before they start work. Details of qualifying documents can be found at www.gov.uk/check-job-applicant-right-to-work.
You should keep a clear photocopy of the documents on file to prove that you have made the proper checks, in case you are later challenged. Adopting a blanket policy to treat all applicants the same could also help to avoid discrimination claims. It could be advisable to update your recruitment policy and offer of employment letters to include this too. Any offer of employment should be subject to proof of the right to work in the UK being provided by the candidate before they start.
Employers are strongly advised not to employ an individual who promises to bring the right documents in after they start work. Without the right proof you could face criminal penalties, fines and it could even affect your personal career if you are a director.
£20,000 fine per illegal worker
The civil offence of employing illegal workers carries the potential of a maximum fine of £20,000 per illegal worker. If your checks are not up to scratch, there is no defence. This penalty has not changed. However, the test for the offence has.
Extension of what constitutes criminal offence
Before 12 July 2016 you could only be prosecuted if you had actual knowledge of illegal working to which you turned a blind eye. From 12 July 2016 you can be prosecuted for the criminal offence if you are considered to have reasonable cause to believe that a person is an illegal worker, and have done nothing about it. Act now by obtaining the right documents to keep out of trouble.
Maximum custodial sentence for employing an illegal worker increased
Directors now also face an increase in the maximum custodial sentence from two to five years for employing illegal workers, along with a potential unlimited fine. This is over and above the £20,000 fine per illegal worker.
Potential closure of business
On top of this, employers who are repeatedly found to be employing illegal workers could face the potential closure of their business by immigration officers for up to 48 hours initially. This provision does not have a commencement date at present.
Directors may be disqualified
In April 2016 Gulam Saber Malek, director of a Blackpool hotel, was disqualified from being a director of a company or from managing or controlling a limited company for seven years for employing five illegal migrants. A fine of £25,000 was imposed on the company, which went into liquidation. This is a clear warning that directors can be disqualified for employing illegal migrants.
What to do if you discover an illegal worker
This is a tricky situation. Always make extensive enquiries to establish a worker’s immigration status. In Nayak v Royal Mail Group Ltd 2016, the Employment Appeals Tribunal confirmed that an employer’s genuine and reasonable belief that an employee was no longer permitted to work in the UK was sufficient to justify the employee’s subsequent dismissal for ‘some other substantial reason (SOSR)’. Dismissing for this reason was both substantively and procedurally fair. There is a distinction between an SOSR dismissal, where a genuine belief that the worker does not have the right to work in the UK is all you need, and a dismissal because of breach of a statutory restriction, where actual knowledge of breach of the restriction is needed.
New criminal offence for individuals working illegally
From 12 July 2016 it is now a criminal offence for the worker themselves if they are working without leave to enter or remain in the UK, or if they are breaching restricted working conditions. Criminal penalties could include imprisonment for up to six months, an unlimited fine, or both. The earnings received by them will also be seized under the Proceeds of Crime Act 2002.
Updating your employment documents
Employers are advised to take action now. It is a good time to update your job application form and ensure that you ask on it whether a worker has the right to take up employment in the UK. You should also include wording in your offer letter to make employment subject to proof of the right to work in the UK. It is advisable to include a section in your recruitment policy stating that all staff must have the right to work in the UK and be able to prove this. Also, your recruitment staff should be trained to make the right checks.
For more information on employing migrant workers, or to update your recruitment policies and documents, contact Emma Thompson.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.