Avoiding illegal workers

Q I understand there is a new law on illegal working?

A It is already a criminal offence to employ a person working illegally in the UK. However, the Immigration (Restriction on Employment) Order 2004 comes into force on 1 May, and is intended to make it harder for people who do not have permission to work in the UK to obtain work by using false documents and to safeguard employers.

Q What changes does the new law make?

A The law changes the list of documents that can be produced to prove that the employee has the right to work. There is still a statutory defence where you have checked and copied appropriate documents to establish the employee’s entitlement to work in the UK. But under the new law, you must also satisfy yourself that the documentation relates to the employee in question.

You must establish a consistent procedure for requesting the documents. There are potential liabilities for race discrimination if you fail to implement appropriate checks across the board for every prospective employee.

Q Do I need to change my recruitment procedures?

A You may already have a procedure for checking that every new employee has the right to work. This needs to be amended to refer to the two lists of documents that are now accepted.

If you do not have a procedure, you should amend letters of offers of employment to state that the offer is conditional on the employee producing relevant documents as listed in the Immigration (Restriction on Employment) Order 2004.

There are two lists: documents that represent sufficient evidence on their own; and those which, in combination, are satisfactory proof of the right to work. The first list includes documents such as a valid UK passport describing the holder as a British Citizen or one conferring rights of abode in the UK. It also includes a passport or national identity card issued by a state that is a part of the European Economic Area.

Documents on the second list include a work permit or one of a list of official documents bearing the National Insurance number of the potential employee, plus additional documents.

The full lists of the acceptable documents can be found in Home Office guidance notes at www.ind.homeoffice.gov.uk

You should request that the prospective employee provides the appropriate documents before taking up employment. You should then check they meet the requirements. Take copies and check that the documents relate to the applicant.

Q What penalties are there if the proper procedures are ignored?

A Under the 1996 Act, you are liable to a £5,000 fine for employing an illegal worker.

Under the Race Relations Act, a successful complainant can claim uncapped compensation including for injury to feelings.

Q What shall I do if applicants do not provide the documents?

A The important thing is to establish a consistent procedure for dealing with these cases. If your prospective employee fails to produce documents before or on their first day of work, then delay the commencement of the employment until these documents have been provided.

If the employee is not able to produce the right documents for several days, you may decide there is a real risk that these documents do not exist, and you should not employ them.

If the delay is likely to be considerable because the employee is still waiting for a work permit application to be processed or has lost the relevant documents, you may decide it is appropriate to introduce a time limit within which these documents need to be produced.

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