The Duty on Employers to Prevent Illegal Working

A familiar issue landed on my desk last week. An employer who had received a fine from the Home Office for employing someone illegally, adamant that they shouldn't be required to pay the fine because the mistake was an innocent one. Of course I fully understand their distress but, by the time it has gone this far, there is often not a lot that can be done. It is not uncommon for businesses to employ illegal workers, whether knowingly or otherwise. However, it is unlawful to employ anyone who does not have the right to live and work in the UK or who is working here illegally. What many employers don't realise is that there can be both civil and criminal sanctions when this is exposed and both can be severe, with fines in some cases being as much as £20,000 per illegal worker. This is not an expense for which many businesses have budgeted. The implications for non-compliance are deliberately harsh and are designed to act as a deterrent to others. The main thing to know, however, is that this is a problem which can easily be avoided.

In the UK, employers are under a statutory duty to ensure that workers have a legal right to work in the UK. The onus is on the employer to check paperwork before any "employment" commences. This includes carrying out checks before someone starts working for you and keeping a record of the checks which you carry out. Home Office guidance exists to assist employers in the form of a document called "An Employer's Guide to Right to Work Check" but, as with a lot of Home Office compliance guidance, it is not always easy to follow what is strictly required. Misunderstanding and/or confusion can lead to inadvertent breaches.

Home Office checks are ordinarily unannounced and, when these occur, employers will be expected to produce reliable and accurate records to show that they have carried out necessary checks and retained mandatory copy documents. Having a system in place in any place of work reliant upon a workforce from outside of the UK is essential. Even if a business has no non-settled workers, it is still important to properly check the paperwork of your existing workforce to avoid potential issues down the line.

It is not always easy to tell if an overseas national is allowed to live and work in the UK. It is always important, however, not to make any assumptions when it comes to the nationality of your staff. In order to avoid a claim for discrimination, employers must ensure that they apply the same standards to UK nationals and to migrants, in relation to recruitment and selection for interview as well as the terms and conditions on which workers are to be employed. It's also sensible to implement a clear policy on equal opportunities, discrimination and harassment, in order to promote good relations between employees of different religions and racial groups.

Given the hefty penalties involved for employers who do not take care to make the necessary checks and the potential for damaging publicity, every employer (including those who have domestic staff) should make sure they understand the requirements on them and that they have evidence of the right to work in the UK for all their employees. Wells Burcombe's business immigration team can help to ensure full compliance with the laws and regulations governing the employment of overseas workers. We can help you to prepare for a potential Home Office inspection, we can guide you on what you need to do to ensure you have the "statutory defence" and we can help you if the worst happens and you are served with an enforcement notice or a penalty.

Please don't hesitate to contact me, Melissa Vangeen, Head of Immigration, if we can be of any assistance in relation to the employment of illegal workers or any other immigration matter.