In this eNewsletter:
 EMPU Contacts  Alan Masson Direct Dial: Email:   Murray McCall Direct Dial: Email:
Where are we?1 Rutland Court,
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BackgroundThe Government recently published new measures to prevent illegal working in the UK. These changes will come into force on 29 February 2008. This followed a consultation process held earlier in 2007 concerning the implementation of provisions contained in the Immigration, Asylum and Nationality Act 2006. The most immediate changes are the creation of civil financial penalties for employers who negligently hire illegal workers as well as unlimited fines and/or custodial sentences of up to two years for employers who are found to have knowingly hired illegal workers. Unlimited fines and custodial sentencesThe Asylum and Immigration Act 1996 makes it an offence to employ a worker over 16 years of age who has no right to work in the UK or to do the work being offered. Penalties can be as high as £5,000 per illegal employee and liability can extend to a director, manager or officer of a company. However, these measures have proved of limited success and will no longer apply when the new civil and criminal penalties come into force in February. It is hoped that the creation of unlimited fines and/or custodial sentences will prove a more meaningful deterrent. The new civil penalty systemCivil penalties will also be introduced for those who employ illegal workers. Employers will commit an offence if they are found to be employing a person aged 16 or over who requires leave to enter or remain in the UK (unless that person has current or valid permission to be in the UK and to do the type of work offered). Employers who negligently hire illegal workers in this way could face maximum fines of £10,000 for each illegal worker found to be working for them. How to avoid liabilityUnder the current law (contained in the Asylum and Immigration Act 1996) employers are provided with a statutory defence from conviction if they check and record certain specified documents as a pre-condition to offering employment i.e. – before the employment commences. From 29 February 2008 employers will be able to obtain a statutory excuse from payment of a civil penalty in a similar manner. A full list of the specified documents (which is divided into List ‘A’ and ‘B’) is contained in section 8 of the Asylum and Immigration Act 1996, but includes:
Employers must make and retain a photocopy or scan of each document provided. They should also note the date which the document check was carried out and keep a copy on file for the duration of the staff member’s employment (and for 3 years thereafter). Visual checks should also be carried out to make sure the photograph and date of birth on the document relate to the prospective employee’s appearance and apparent age. It is also necessary to check that expiry dates on documents have not passed and that any UK stamps or endorsements on the documents entitle the applicant to undertake the work in question. The statutory defence does not apply where an employer knows that they are employing an illegal worker. In the case of an employee who has produced an original document or documents from ‘List B’, an employer must carry out a follow up check every 12 months. This is because documents from List B show that an individual has limited leave to remain in the UK and employers must ensure that the employee has retained their entitlement to work. It is important to note that checks should be carried out on all staff and not just prospective/current employees who the employer suspects of being an illegal worker. Failure to do this could result in employers missing out on the statutory defence and may expose them to claims for unlawful discrimination.
CommentWith these changes only weeks away, it is important that employers are aware of the impact they will have. Fortunately, the same defences will be available under the new legislation as currently exist under the Asylum and Immigration Act 1996. This means that employers should avoid liability under the civil rules if they continue to comply with their obligations in respect of checking, copying and retaining certain prescribed documents - prior to the employment commencing. However, if current employees have not been checked, employers should ensure that they are checked immediately. It should also be remembered that annual checks are required for those employees with limited leave to live and work in the UK. If the employer has already employed someone with limited leave to remain in the UK, and the employee has made a valid application to have this permission renewed, then this application will be deemed to be extended until such time as it is refused or granted. In such cases, employers must see documentary evidence that a valid application has been made in time by the employee and therefore that they have the right to continue working. They should then check regularly to ensure that they learn the outcome. Employers must take advice and proceed cautiously if it is unclear whether employing someone, or continuing to employ someone, would be a breach of the Act. Where an employee’s immigration status is unclear and there is a real concern whether it is lawful to continue to employ them, an employer should always satisfy himself as to the facts by conducting a reasonable investigation. If, after taking suitable advice and checking the evidence available, the employer is satisfied that the employee can no longer be employed then the statutory dismissal and disciplinary procedures will still have to be followed to ensure that the dismissal is potentially fair.
Further informationFor more information on the issues raised in the ezine or any other employment related business, please contact Euan Smith, Alan Masson, Murray McCall or your usual contact in the Employment Team. |
