Don’t be fooled into employing someone illegally — or pay the price

Unsurprisingly, in the midst of chaotic scenes in Calais and the Mediterranean, there is renewed emphasis on targeting those who employ illegal workers in the UK.

Immigration minister James Brokenshire recently stated that businesses employing illegal workers will be subject to “the full force of government machinery”, and recent reports of a “wave of raids by immigration officers” confirm that he was sounding the whistle on action.

SME leaders take heed — you will be the target of both the illegal immigrant and the immigration enforcement teams. Now is a critical time for all businesses to check, cross check or implement robust systems to ensure all employees have passed Right to Work checks.

Who should you check?

Employees: Every employer in the UK must undertake a Right to Work check before any employee starts work. No ifs, no buts — no working without correct documentation.

Agency workers: Whilst the clear legal obligation falls with the agency as the employer, it is still advisable to take steps to protect yourself. The contract with the agency should have an explicit provision that they have completed proper checks and that all agency workers have an unfettered Right to Work.

An agency worker may still be defined as an employee depending upon various factors, including reporting line, who supplies work equipment, the pay structure, what tasks have to be done and where are they performed. To give your business absolute protection, as a minimum use a reputable, well-established agency and have it provide you with a copy of the Right to Work checks that it has undertaken.

Self-employed: You do not have a strict duty to conduct Right to Work checks on the self-employed, however, you must be certain to look at the whole picture to determine if someone could be deemed to be an employee. Ask questions like whether you control when and how the work is done. The simplest way to ensure protection from liability is to carry out the Right to Work check anyway.

Read more on the subject:

• Top 10 tips for Right to Work checks
• A guide to illegal immigration workers for employers
• Bulgarians and Romanians: what employers need to know about right to work checks
• Working for someone on a self employed basis

What do I check and how?

Accuracy is vital and only this will give you valid protection. The government sets out three steps:

(1) Obtain the documents

The government has published a list of acceptable documents that you must obtain from every employee. You must see the originals of these documents.

(2) Check the documents

You must carefully check that the photograph in the passport reasonably reflects the individual, that the date of birth does not seem wildly at odds with the individual’s appearance, and information is consistent across documents.

You will be liable if it is reasonably apparent that the document is false. Fake European passports are on the rise, so thorough checks are advisable. Ensure documents are valid. Ask questions of the potential employee. Why do names differ across documents? How did you obtain a passport from a certain country?

You will also be liable if an employee’s limited Right to Work expires on your watch, so you must have strong processes in place to track expiry dates and follow up with an employee at least six months before the expiry date to ascertain what the employee is doing regarding an extension.

(3) Copy the documents

Make copies of documents and keep these safe — ideally in the employee’s HR file. Documents can be stored in hard copies or electronic files, provided they can be produced immediately should you have an inspection.

If the steps above seem time-consuming, then this is a good time to reflect on the possible financial penalties. A sliding scale applies depending upon your previous record and other mitigating factors. Fines can range from £10,000 to £20,000 for each illegal employee.

Employers knowingly employing someone illegally are committing a criminal offence and the civil penalties outlined above pale into insignificance compared to the possible two-year custodial sentence and/or unlimited fine.

Knowledge is key

It is important that you know what documents you need and what you are looking at. Guidance for all employers is available to help you understand how to prevent illegal employment. Take time to educate yourself or the person on your staff responsible for conducting Right to Work checks.

Katrina Cooper, is counsel at Faegre Baker Daniels. This article was researched with the support of Eleanor Bath, summer intern at the firm.

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