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Articles Employment 18th Feb 2016

Food Sector: Employing immigrant workers legally

A dawn raid last summer by immigration officers on the UK’s biggest sandwich maker, Greencore, resulted in the arrest of 32 workers. At stake are fines of up to £20,000 per worker if it is concluded that Greencore and its recruitment agencies failed to check the workers’ documents properly.

Nine people were charged with immigration offences and 22 were in danger of being deported “if appropriate”. The raid, triggered by a tip-off, was carried out as part of a major Home Office crackdown on the employment of illegal migrants and highlights the importance of carrying out the necessary checks before employing immigrant workers.

New sanctions for 2016

Besides very significant fines of up to £20,000 per worker, the Immigration Bill 2015-2016, introduces tough new sanctions including making the criminal offence easier to prove and potential closure of the business.

New penalties – the key points:

  • Civil Penalty – Employers face a civil penalty of up to £20,000 for each illegal worker they employ.
  • Criminal Offence – There is also a criminal offence of knowingly employing an illegal worker. The Immigration Bill proposes to extend this to “knowingly” employing or “having reasonable cause to believe” that you are employing an illegal worker. This will make the test for the offence more objective and therefore easier to prove.
  • Custodial sentence – The offence carries a custodial sentence which will be increased from 2 to 5 years’ imprisonment under the new Bill.A company can be guilty of this offence if a person who has responsibility within the company for an aspect of the employment knew that the employee was working illegally. For example, if a bar manager at a managed house knowingly employs an illegal worker the company will be liable.
  • Director’s personal liability – A director, officer or manager will be regarded as having committed a criminal offence, as well as the company being liable, if the offence is committed with their consent or connivance. The person liable will need to have been involved in the overall management of the company. The thought that you could be prosecuted personally for consenting to employ illegal workers is a real but daunting one. Directors need to ensure that they and the company are protected by having the right policies and procedures in place – see good practice below.
  • Proceeds of Crime – The Immigration Bill will allow a court to order an illegal worker’s wages to be seized as proceeds of crime. This should act as a deterrent to those contemplating working illegally in the UK.
  • Closure of Business – The Bill also introduces a power to close a business for up to 48 hours if the employer is found to be employing an illegal worker and the employer has previously breached illegal working legislation. The court may then make an illegal working compliance order if appropriate.

Statutory Excuse

Employers will have a statutory excuse should it be proved that an immigrant worker does not have the right to work in the UK if relevant documents are checked before a potential employee starts work and they have complied with requirements for verification, copying, retention and recording.

Steps you must take before employment:

1 – Check relevant documents

If you carry out the required document checks correctly before you employ a worker then you will have a “statutory excuse” against payment of a fine if it turns out that the individual is an illegal worker after all.

There are 2 lists of documents which can be checked. The documents on List A show that the employee has an ongoing right to work in the UK and if you check the document correctly it gives you a statutory excuse for the duration of the persons work with you.

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. The lists are set out in a Home Office Employer guide.

2 – Follow verification and copying requirements

Before an employee starts work you must:

  • Accept only an original document and take allreasonable steps to check the validity of the document and that the employee is the owner of the document
  • If the document contains a photograph you mustbe satisfied that the photograph is a photograph of the prospective employee and a date of birth is consistent with the appearance of the employee
  • Check that entry and expiry dates have notbeen passed and any endorsements to see that the person can do the type of work that you are offering
  • Copy the document and retain the copy securelyfor not less than 2 years after the end of the employment
  • Documents must be copied in a format whichcannot be subsequently altered.

If you have partially complied with these requirements then the penalty will be reduced – for example, if you have copied one of two documents required or have copied only part of a specified document.

However, the statutory excuse for the penalty will not apply if you know that you are employing an illegal migrant.

Repeat checks annually

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 UK for the statutory excuse to remain valid and keep a record of the date of such checks.

Check Biometric Residence Permits

These are now in wide circulation and make document checking simpler for employers. A BRP is the size of a credit card and holds a person’s fingerprints and photograph. You can carry out an online check on the validity of a BRP and the person’s right to work in the UK.

Check employee status

The legislation applies only when you employ an illegal worker not if you engage someone who is self employed, or an agency or contract worker. 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 establish the defence for that person rather than risking conviction for employing an illegal worker.

Good practice – protecting yourself

To avoid having to pay severe penalties you should check that all workers are legal and be seen to be carrying out those checks. You should consider adopting the following good practices:

  • Build the checks into your recruitmentprocedure and implement them in a way which is not discriminatory.
  • Check documents before an employee starts workand make the production of such documents a condition of employment.
  • Agree a central recruitment policy, endorsedand monitored by directors. This is the best way to protect directors andthe company from liability.
  • The implementation of the policy should bereviewed and monitored regularly – providing that robust 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 provingthat you have checked the relevant documents and carried out the requiredverification 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.

Avoid race discrimination issues

Whilst it is essential to check entitlement to work in the UK this should not be done in a way which is 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. Suggest they go to a Citizens Advice Bureau for further advice on what to do. Finally, monitor your recruitment practices taking account of equality issues.

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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