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A duty to check for legal status

Changes to immigration law puts the onus on employers to check workers’ credentials. By Jennifer Taylor

The last couple of years have seen a Government crackdown on illegal immigrants working in the UK. As part of this, from 29 February this year employers need to take extra steps to ensure their employees have the right to work in the UK.

For medium-sized businesses this requires not only getting your own house in order but ensuring that the subcontractors and agencies you use are complying with the law.

It all amounts to a big administrative burden. In order to comply with the Immigration, Asylum and Nationality Act 2006, employers need to check documents of prospective employees to verify that they have the right to work.

“The actual offence is not failing to check the documents, it’s employing somebody who doesn’t have a right to work,” says Tracy Yates, employment law partner at Eversheds, who specialises in providing advice on business immigration.

“All the checking of the documents does is, hopefully, alert employers to people who might not have the right to work.”

Checks avoid penalties

If you’ve done all the checks properly and you later discover that you are employing somebody illegally, you will have a “statutory excuse” to avoid paying any penalties.

It is important to check all employees, since failing to do so could lead to complaints of racial discrimination.

For any employees with limitations on their right to work, you must recheck their documents at least every 12 months to see if there has been any change in their status.

There are two possible penalties under the new system. Civil penalties apply when you are found to be employing people without the right to work, and fines range from £2,500 to £10,000 per illegal worker.

If you have a statutory excuse you may escape these fines.

The criminal offence only applies if you knowingly employ somebody who has no right to work here. It carries a maximum two year prison sentence and/or an unlimited fine.

Subcontracted workers

For medium-sized firms, the situation becomes a bit murky because of the involvement of subcontractors and agencies in providing staff.

“There’s a question mark as to who the employing entity is, because quite often on a construction site it’s all a bit nebulous as to where the employment relationships might lie,” says Helen Boddy, head of employment at Shadbolt Law.

She advises contractors to make it clear that subcontractors are at arms length, and to make it a requirement that they do the prescribed checks.

For employment agencies Ms Boddy advises “making it a condition of your terms of business that the employment agency can verify that they’ve got good evidence that they’ve seen those documents and verified them.”

The bottom line is that contractors don’t need to look at the documents themselves, but they need to be satisfied that either their subcontractor or the employment agency has.

Subbies are self-employed and the checks do not apply to them, says Ms Yates, but says it is probably sensible to check that they have the right to work anyway.

As for people you currently employ, they will be covered by the old legislation.

The level of risk will vary from contractor to contractor. It will be low if you are on a site where employees are all locals, but in London, for example, your workforce could be entirely non-UK nationals.

Quite a lot of them could be EU nationals who have a right to work, but there could be some that don’t. “It is confusing because not all EU nationals have an automatic right to work,” says Ms Yates.

And it’s important to remember that in situations where you use subcontractors or agencies, while you will not be liable to penalties if they fail to do the checks, you could still face substantial commercial risks.

Ms Yates explains: “The contractor doesn’t want to find he’s got nobody left on site because they’ve all been pulled.”

What you need to do to meet the new immigration law requirements

From last Friday, contractors need to see the original documents of all prospective employees, which verify that they have a right to work in the UK.

Tracy Yates, employment law partner at Eversheds, advises asking employees to bring these to job interviews, or after you’ve offered them the job but before they start work. You have a duty to satisfy yourself that the documents aren’t fake and that they relate to the person who has provided them, so you should check that the photograph looks like the prospective employee and the date of birth applies to them.

Take copies of the relevant documents, as you will need these to provide a “statutory excuse”, should you later be found to be employing someone without the right to work in the UK.

A list of the documents that can be used is in the Border & Immigration Agency’s Prevention of Illegal Working – Summary Guidance for Employers, which is on cnplus.co.uk along with information on employing nationals from the European Economic Area.

You should check the documents of all prospective employees, not just a selection, in order to avoid racial discrimination. The BIA guidance on this, Anti-discrimination Code of Practice, is also on the CN website.

Ms Yates says employers will also need systems in place to recheck employees who have restrictions on their leave, at least every 12 months throughout their employment, while there are still restrictions on their right to work. “At the moment a lot of employers don’t have that in place because they haven’t needed to, so there’s going to have to be a diary system, for example,” she says.

Subcontractors and agencies you use will be liable for any penalties that apply to the employees they provide, but you should still ensure that they are making the appropriate checks.

“In most cases there will be terms and conditions between contractors,” says Ms Yates. In those terms you should seek warranties, assurances or undertakings that appropriate document checks have been done.

Download PFDs about anti-discrimination code, civil penalties for employers and how to prevent illegal working by clicking on the resource box on the right hand side