Penalties for poor housekeeping 25/9/09

Attorney General Baroness Scotland, the government's chief legal adviser, has been fined £5000 for employing an illegal worker as a housekeeper. The UK Border Agency (UKBA) seemed satisfied that she did not  "knowingly" employ an illegal worker and took steps to check the documents provided to her by the housekeeper as proof of the right to work in the UK.

But regrettably she failed to keep copies of these documents thus breaching her obligations under the new civil penalty system introduced in February 2008 under the Immigration, Asylum and Nationality Act 2006 (the 2006 Act).

The maximum penalty is £10,000 for each illegal worker found to be working for an employer but according to the UKBA, a variable rate of fine can be imposed depending on the circumstances of the case.  Employers who co-operate with investigations, as in this case, who have no previous record of employing people illegally, or who can show they made some effort to check the status of an employee, are not normally fined the maximum level. 

Since February 2008 and June 2009, the total number of fines paid under the new scheme was about 1156.  All of those were paid by businesses like restaurants, shops and petrol stations. The UKBA publishes details of employers who have been found liable to a civil penalty including the penalties imposed. The list shows that £5000 is in line with the level of fines imposed on other employers employing 1 illegal worker but has been as high as £50,000 for a business in Scotland employing 10 illegal workers!

The 2006 Act enables an employer to establish an excuse against liability for payment of a civil penalty by checking and copying certain original documents before an employee starts working for the employer.

The civil penalty scheme sits alongside the criminal offence of knowingly employing an illegal worker, which will be used in more serious cases where rogue employers knowingly and deliberately use illegal workers. It carries a maximum custodial sentence of 2 years and/or an unlimited fine.

Appropriate checklist to avoiding illegal employment
This case shows that simply making an administrative or technical error during your recruitment process could be a breach of the law and subject you to a substantial fine as well as your details being disclosed on the UKBA website. It is a prompt reminder that you are not only responsible for checking the immigration status of all your staff, regardless of where they are from, but for retaining proof of the documents checked before the employment begins.

It is also important to remember that the population of the UK is ethnically diverse. Many people from ethnic minorities in this country are British citizens and many non- British citizens from black and minority ethnic communities are entitled to work here. Therefore, it must not be assumed that someone who is white and lives in the UK is entitled to work or that someone from an ethnic minority is an immigrant.

Your recruitment practice should have a checklist in place to ensure compliance with the 3 step process of getting the relevant documentation, checking it is valid and taking copies of it as recommend by the UKBA in its Guidance on the Prevention of Illegal working. Not only will this help establish the statutory excuse against payment of a civil penalty but will ensure that your recruitment practices are open and transparent and free from discrimination.

Conclusion
Baroness Scotland appears to be the only individual to have paid a fine for employing an illegal worker. While many large employers know about the legal requirements in this area, others are being caught out mainly because of the complexities of the law and the administrative burden it places on smaller employers. The size of your business is no defence to avoid liability.

Further information
If you have any queries on any of the above, or need advice in updating your recruitment policy to ensure compliance with the new immigration requirements, please contact Alan Masson or Claire Hendry.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.