BaronessScotland and the illegal worker

The attorney-general, Baroness Scotland (right), has not been far from the news headlines recently. She has probably done more to alert employers to the risks of employing illegal workers or failing to carry out appropriate document checks than any government-funded campaign ever could.

Her case has also highlighted the complexity of this area of law and how easy it is for even well-meaning employers to trip up and find themselves on the receiving end of a civil penalty.

Under the legislation, which came into force in February 2008, there is no legal requirement to check someone’s immigration status, and employers cannot be fined simply for failing to carry out the checks. However, if it turns out that the person hired is working illegally, the employer faces a civil penalty of up to £10,000.

Employers can establish a statutory excuse from this penalty if they carried out appropriate checks on the person’s immigration status. This means that if it later turns out the documents provided were forgeries, the employer should have an excuse. However, there are numerous pitfalls for employers.

The checks must be carried out before the employee’s first day of work, otherwise the statutory excuse is not established. Employers must also ensure that they retain a copy of the documents they check. This is what the attorney-general has said she failed to do. Further, employers must ensure that they obtain the right documents. Only those set out in the legislation and guidance will give employers the statutory excuse. For example, relying on a National Insurance card alone will not be sufficient to show the person has the right to work in the UK or to establish a statutory excuse.

After all this effort, the statutory excuse only lasts for 12 months from the date on which the check was carried out, if the person has limited leave to remain in the UK. The employer must carry out further checks at least every 12 months to maintain the statutory excuse.

This has the potential to create a minefield in relation to the employee’s employment law rights. Is it discriminatory to carry out these checks? Can the employer discipline or dismiss the employee if they fail to provide the documents every 12 months? What happens if there is a transfer of the business? Well-advised employers should consider amending contracts of employment to make it a requirement for employees to provide evidence of their right to work in the UK when requested to do so by their employer.

In addition to being issued with a civil penalty, employers found to be employing an illegal worker will be named and shamed on a public register. Those who are registered as sponsors with the UK Border Agency could have their sponsor licence downgraded or withdrawn, thus affecting their ability to employ overseas nationals. There is also the fear that employers could face up to two years in prison if they knowingly employ an illegal worker. It is hoped that criminal prosecutions will be used as a last resort and as a deterrent. However, as drafted, this legislation could be used to prosecute employers that continue to employ someone whose leave has expired.

If the baroness, who was involved in the implementation of the law and who has few employees, has difficulty complying with it, then what hope do already legislatively overburdened employers have? It can only be hoped that the attorney-general’s mistake has highlighted that the government may need to reconsider its approach.

Kerry Garcia, senior associate, employment and immigration team, Stevens & Bolton

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