As we approach Brexit, employers now more than ever before, need to ensure 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.
The problem isn’t new to the automotive sector. Back in October 2011, CAT reported that ECP had been caught employing illegal workers at the Tamworth distribution centre and also at its head office in Wembley. The company was subsequently fined £35000. Interestingly, a recruitment firm – Winner Logistics – which supplied staff to ECP was also caught and fined £15,000.
LAW AND PENALTIES
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 illegal working. To comply 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
Employers need to follow 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.
Different documents must be used for employees that 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 website.
Employers are not expected to be experts in identifying false documents, however they could still be liable to pay fines if it is “reasonably apparent” 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 should only be originals not copies and the employer should try and 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 of the employee.
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.
An employer will be subject to civil penalty if it is found to employ someone who does not have the right to undertake the work which they are employed to do. The maximum fine is £20,000, which doubled from that levied in 2014.
A criminal offence will be committed if the employer knew or had “reasonable cause to believe” that 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.
The Chief Immigration Officer also now 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.
But 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. 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 they’ve had a tip off.
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.