|
Prevention of illegal working - new
penalties for employers
29 February
From 29 February, the law regulating employers’ obligations to
screen for illegal workers will change. Under the new regime,
employers who employ workers illegally can be fined up to £10,000
for each illegally employed worker. They can be excused payment of
the fine (though they have still committed an offence) if they can
demonstrate that they checked the prospective employees' right to
work in the UK. This is similar to the previous statutory defence –
click here to view our previous bulletin
published in June 2006.
The Immigration, Asylum and Immigration Act
2006 (“the Act”):
- Re-categorises documents employers must check and copy to
establish the ‘excuse’
- Introduces a new sliding scale for calculating fines
- Empowers the Secretary of State to impose penalty notices
requiring payment of a fine unless the employer responds by
objecting to the penalty notice within a prescribed period (which
the Government has helpfully not yet announced) or appeals within
28 days. The employer must then be able to demonstrate that they
have checked and retained copies of the required documents. Even
then, doing so only excuses payment of the fine – it is not a
defence
What can employers do to avoid
liability from 29 February?
In order to effectively challenge any penalty,
employers will have to have brought themselves within the
“statutory excuse” by demonstrating they have complied with the
following procedure:
1. Before any new employee commences
employment, an employer needs to undertake a check of approved
documents (either from “List A” or “List
B”) for each prospective employee. The documents must be
originals and not copies. The new list system governs the
nature of checks required under the Act, and the extent to which an
employer can be brought within the statutory excuse. This may
have ramifications for the scale of any fine imposed.
The content of the new lists differs from
those under previous regime. The list of approved documents
from “List A” includes:
- Full UK or European Economic Area (EEA)
passport; or
- Full British birth or adoption certificate
which includes the name(s) of at least one of the holder’s parents
and P45/P60. (A document showing only a temporary
National Insurance number will not suffice)
The list of approved documents from
“List B” includes:
- A work permit or other approval to take
employment issued by the Home Office or the Border and Immigration
Agency, and either a passport or another travel
document endorsed to show that the holder is allowed to stay in the
United Kingdom and is allowed to do the work in question
Employers can obtain a full list of approved
documents from the Border and Immigration Agency.
2. Employers must check the
validity of the documents. They must satisfy themselves that the
person presenting the document is the rightful holder and the
documents are genuine, have not been tampered with and belong to
the holder. Checks would include checking any photographs to
ensure they are consistent with the appearance of the
individual.
3. The employer must then take a
copy of the relevant page or pages of the document(s) in a format
that cannot be subsequently altered (e.g. a photocopy or scan
(using Write Once Read Many software (WORM)). The employer must
securely retain a copy of relevant documents.
Once checked and copied, “List
A” documents entitle the employer to rely upon the
statutory excuse for the duration of employment.
“List B” documents require follow-up checks on the
employee at least once every 12 months after the initial
check. If employers do not carry out follow-up checks, they
cannot rely on the statutory excuse (although the fact that a full
initial check was carried out can be relied on to reduce any
subsequent penalty).
Actual knowledge by an employer that an
employee is not permitted to take up the work in question will
prevent an employer relying upon the “statutory excuse” and the
employer risks facing an unlimited fine and up to 2 years’
imprisonment.
Implications for TUPE
transfers
Whilst the Act itself is silent on the
obligations of employers who inherit employees on a TUPE transfer,
the Border and Immigration Agency Code of Practice (“the Code”)
states:
“employers who acquire staff as a result
of a Transfer of Undertakings (Protection of Employment) transfer
are provided with a period of 28 days grace to undertake the
appropriate document checks.”
This obligation has serious implications for
employers who acquire staff as a result of business acquisitions or
service provision changes.
Transferees should ask the transferor whether
the transferor is fully compliant with the checks procedure under
the Act and consider requesting warranties and indemnities,
particularly where the transferor is unable to provide requisite
information and documentation relating to transferring employees
right to work legally in the UK.
Avoiding unlawful
discrimination
The Border and Immigration Agency has this
month also published guidance for employers on avoiding unlawful
discrimination in carrying out the requisite document checks. The
Agency advises that employers make pre-recruitment checks in a
non-discriminatory manner by applying checks to all job applicants
and at the same point of the recruitment process.
A copy of the guidance and the Code can be
found on the Border and Immigration Agency website: www.bia.homeoffice.gov.uk
For more information or advice, please contact
Dawn Lobley or
Edward
Benson.
The content of this bulletin is provided for
the purposes of general interest and information. It contains only
brief summaries of aspects of the subject matter and does not
provide comprehensive statements of the law. It does not constitute
legal advice and does not provide a substitute for it.