Cracking down on Food Industry Immigrant workers
With the large number of immigrants being trafficked across the world, the authorities are not hesitating to crack down on workers who are working illegally in the UK. Fines have been doubled meaning having a worker on your payroll who is not entitled to work here could cost you £20,000 in civil penalties. Employers ‘knowingly employing’ illegal works could face up to 2 years in prison as well as an unlimited fine.
As the food industry is a magnet for overseas workers, it is vital to be vigilant and have the right checks in place. Being able to show you have carried out the correct checks on a worker’s eligibility to work in the UK would mean reduce your liability, so the Home Office has been encouraging businesses to be clear on the steps that they need to carry out before employing workers from overseas.
An expensive risk to take
With its high turnover of staff and season work, the food industry is very attractive to migrant workers – and indeed the industry relies heavily on them. However, the cost of getting it wrong means that you must be careful about who you employ.
The UK Border Agency carries out regular intelligence-led investigations and takes firm action against employers who flout the law.
The key points to note are:
- Employers face a civil penalty of up to £20,000 for each illegal worker they employ
- Employers will have a statutory excuse if relevant documents are checked before a potential employee starts work
- Employers must check the validity of documents provided by prospective employees and comply with verification, retention, copying and recording requirements (see list below)
- The criminal offence of knowingly employing an illegal worker carries the penalty of a custodial sentence of up to 2 years’ imprisonment and/or an unlimited fine.
- A company can be liable for knowingly employing an illegal worker where an individual, who has responsibility within the company for an aspect of the employment, is aware that the employee is working illegally. A director or manager will be regarded as having committed the offence personally if the offence was committed with their consent or connivance.
To reduce the risk of employing staff who do not have a right to work in the UK, make sure when you are checking documents that:
- They are current originals, are genuine and refer to the applicant in question
- The ,dates of the worker’s right to work in the UK have not expired
- Photos are the same across all documents and look like the applicant
- Date of birth is consistent across all documents
- The name is consistent (but if not, see supporting evidence such as a marriage certificate)
- Check any endorsements to ensure the applicant has permission to carry out the type of work you are offering
Make a copy of documents that can’t be changed (eg a photocopy).
- Copy the pages of a passport that carry expiry date, applicant’s personal details (including name, nationality, date of birth, photo and signature) and a UK Government endorsement indicating that the holder has an entitlement to enter or remain in the UK and undertake the work in question.
- Make a complete copy of all other documents and keep them during employment and for 2 years afterwards.
- Repeat these checks at least once a year for the statutory excuse to remain valid – and keep a record of when you have done these checks.
If the necessary documents are not available, employers can use the Home Office’s Employer Checking Service.
The legislation applies only to employees and not the self employed, agency or contract mworkers. However be aware that a casual worker may be considered an employee even where there is no written contract. Where there is any doubt, you should look to establish the defence for that person rather than risking conviction for employing an illegal worker.
Good practice – protecting your business
To avoid severe penalties consider adopting the following good practices:
- Build the checks set out above into your recruitment procedure and implement them in a way which is not discriminatory.
- Check documents before an employee starts work and make the production of such documents a condition of employment.
- Directors should protect themselves and the company from liability by having a central recruitment policy, endorsed and monitored by directors, which details the checks and who is responsible carrying them out. Good record keeping should show that directors did not consent to the employment of an illegal worker.
- Avoid race discrimination issues by carrying out checks in a way which is not discriminatory.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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