Care homes beware: ensure your workers are legal or face large fines

With the influx of illegal immigrants to Europe hitting the headlines, immigration officers and police are to stage a series of high-profile raids this autumn to uncover illegal working by new arrivals to the country. Because of the prevalence of lower paid workers in the care sector, and the likelihood that employers may therefore target overseas workers, this is one industry upon which the raids will focus.

An expensive risk

With a constant demand for staff, the care sector is very attractive to migrant workers – and indeed the industry relies upon them. In addition to the anticipated specific targeting of the sector, the UK Border Agency carries out regular intelligence-led investigations and takes firm action against employers who flout the law. With fines applied per worker employed illegally, flouting the law could add up to a very significant fine. An employer who knowingly employs a foreign worker without the right to work in the UK can be fined up to £20,000 per worker.

Whether fines are imposed will be dependent upon whether the employer is able to demonstrate that appropriate pre-employment checks were carried out.

The key points

• 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.
• There is a criminal offence of knowingly employing an illegal worker, the penalty for which is 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.
• The legislation applies only to employees and not the self employed, agency or contract workers.

Practical steps

Documents to check: There are 2 lists of documents (set out in the UKBA Employer guide) which can be checked. The documents on List A show that the employee has an ongoing right to work in the UK. Documents on List B show a right to work in the UK for a limited time and to be covered by the statutory excuse you must repeat the document check at least every 12 months.

Verification and copying requirements: You must take certain steps in relation to the documents you are required to see before an employee starts work with you:

• Accept only an original document
• Take all reasonable steps to check the validity of the document
• If the document contains a photograph you must be satisfied that the photograph is a photograph of the prospective employee
• If the document contains a date of birth you must be satisfied that this is consistent with the appearance of the employee
• Take all reasonable steps to check that the employee is the owner of the document
• Check that entry and expiry dates have not been passed
• Check any endorsements to see that the person can do the type of work that you are offering
• Copy the document and retain the copy securely for not less than 2 years after the end of the employment
• If the document is a passport or other travel document you must copy the following pages in a format which cannot be subsequently altered: the front cover and any page containing: the holder’s details including nationality, the holder’s photograph, the holder’s signature, the date of expiry, 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.
• If the document is not a passport or other travel document you must take a copy of the whole document in a format which cannot be subsequently
  altered.

If you have partially complied with these requirements then the penalty will be reduced. However, the statutory excuse for the penalty will not apply if you know that you are employing an illegal migrant.

Repeat checks: You will need to undertake repeat document checks at least once a year for employees who have limited leave to enter or remain in the United Kingdom.

Biometric Residence Permits: These have been issued to non-EEA nationals since 2008 and are now in wide circulation. These credit card sized permits, holding fingerprints and photograph, make document checking simpler for employers. An online check on the validity of a BRP and the person’s right to work in the UK makes the process easier.

Directors’ liabilities: knowingly employing an illegal migrant

There is a separate criminal offence of “knowingly” employing an illegal worker. This offence carries a custodial sentence of up to 2 years imprisonment and/or an unlimited fine. A company can be liable if a person responsible for employing an employee knows they are working illegally. For example, if a care home manager at one of your homes knowingly employs an illegal care worker, the company will be liable.

In this case, a director, officer or manager will be regarded as having committed the offence, as well as the company, if the offence is committed with their consent or connivance.

As a director of a care home the thought that you could be prosecuted personally for consenting to employ illegal workers as a result of actions of your staff is a real but daunting one. It is therefore important to protect yourself and your company by having the right policies and procedures in place.

Good practice – protecting yourself

To avoid penalties adopt the following good practices:

• Build the checks 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.
• Have a central recruitment policy, endorsed and monitored by directors, detailing the checks required. The policy should state that employees will be disciplined for not carrying out the relevant checks and summarily dismissed for knowingly employing an illegal worker. The implementation of the policy should be reviewed and monitored regularly. If good records are kept directors, officers and managers should be able to show that they did not consent to the employment of an illegal worker.
• Record keeping is very important in proving that you have checked the relevant documents and carried out the required verification and copying. If you cannot produce a record of having carried out a check prior to recruitment you will be treated as having carried out no check at all and the full penalty will be payable.

Avoiding race discrimination issues

Whilst it is essential to check entitlement to work in the UK, this should not be done in a discriminatory way. So 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 and don’t assume a person is an illegal worker if they can’t produce a document. Monitor your recruitment practices, taking account of equality issues.

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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.