Illegal working: How employers can stay compliant

Protesters boycotted Byron, believing it had led a "sting" on workers. Photo: Guy Bell/REX/Shutterstock

Burger chain Byron made headlines last month when the Home Office arrested a number of illegal workers. Given the tougher new immigration rules now in place, what are employers’ roles and responsibilities when it comes to right to work checks?

The prevention of illegal working has been at the forefront of media coverage in recent weeks. On 12 July 2016, the Immigration Act 2016 came into force introducing new criminal penalties for individuals working in breach of their visa conditions and increasing the penalties for employers.

Just two weeks later, the Home Office arrested a number of employees of burger chain Byron, who were suspected of working illegally.

The Home Office regularly undertakes these compliance visits but they rarely get noticed. Byron – on the other hand – is a popular high street name with George Osborne, the former Chancellor of the Exchequer, among its fans. In retrospect, press coverage seems inevitable.

Most of the media attention rested on the fact that Byron had agreed to cooperate with the Home Office. This was always going to be a tricky balancing act. I imagine that Byron takes its duty of care to employees very seriously but, of course, also needed to follow the law.

It appears the Home Office had intelligence that criminal immigration offences were being committed on Byron’s premises.

Officials have powers to enter and search premises to investigate possible immigration offences and if they need to use these powers they will. In turn, we can assume that Byron would not have wanted to have obstructed a criminal investigation.

They would also have been mindful that cooperation with the authorities is a relevant factor in determining the extent of a civil penalty if illegal working is discovered. That may not have been a driving consideration for Byron, but it is important.

Despite the number of individuals arrested for working illegally, it is understood Byron will not face any criminal or civil penalties because they correctly carried out all the requisite right to work checks and cooperated with the Home Office.

So with the spotlight on employers, what is illegal working? And what should employers do if they themselves uncover some of their employees do not have the right to work or are contacted by the Home Office in relation to this point? How can employers make sure they act within the law but also in the interest of their employees?

What is illegal working?

Illegal working goes beyond simply not having the right to work in the UK. That will typically mean starting by checking a prospective employee has a valid visa, but you also need to check the terms of their visa.

A classic and often overlooked example is the work rights held by Tier 4 General student visa holders.

The level of course a Tier 4 General student is enrolled on will dictate the number of hours they are permitted to work, if at all. It is therefore crucial that employers are able to track the number of hours worked per week.

For example, a Tier 4 General student working 21 hours a week instead of the permitted 20 hours a week during term time would be working illegally.

What is the employer’s role?

You must conduct a right to work check for all employees either prior to or on their first day of employment. This is done by checking a document which is acceptable for showing permission to carry out the work in question.

The employer is then required to make and retain a clear copy of the relevant documents, recording the date of the check and retaining the copy on file securely.

It is important to remember that you are not expected to be a forgery expert. If you have an employee who has given a false document, you will only be required to pay a civil penalty if it is reasonably apparent that it is false.

In the Byron example, it is reported that they had been presented with forged documents, but they still benefited from the statutory excuse.

What should I do if I uncover illegal working?

In the event that a company uncovers illegal working by an existing employee, it should immediately take steps to bring the employment to an end. In doing so, an employer should always seek legal advice in relation to employment rights.

Ending the employment has now become even more critical as, with the introduction of the Immigration Act 2016, an employer will commit a criminal offence with up to five years imprisonment if they know or have reasonable cause to believe that they are employing an illegal worker.

What if the Home Office advises me an employee is working illegally?

In some instances, such as fraudulent documentation, the first time an employer may know that an employee is potentially working illegally is when they are contacted by the Home Office.

Where this happens the employer should immediately check as to whether or not they hold the appropriate evidence of the right to work checks having taken place. This is critical, as it will afford the employer a defence in regards to any potential civil penalty.

From there, the employer should engage with the Home Office in relation to the provision of documentation and relevant information wherever possible. They should also commit to stopping employment where such evidence is provided by the Home Office.

It is possible that the case may involve a criminal offence, so cooperation with the Home Office is always recommended.

This is particularly important where a statutory defence cannot be established. Cooperation with the Home Office is a relevant factor in determining the financial level of the civil penalty.

However, employers should always seek prior advice on these points to ensure they are not placing themselves in a contentious position in regards to data protection and employment law.

How can I ensure we are compliant?

As an employer, you are obligated to ensure your employees continue to have the right to work throughout their employment with you.

This includes completing follow-up checks on those who have time-limited permission to work in the UK before their status expires.

Recent trends in illegal working have shown government agencies such as HMRC, DVLA and the UKVI sharing data.

With information being shared more freely, it is even more important to maintain accurate records, minimising the risk of illegal working penalties or criminal prosecution.

Most often, a civil penalty has been given simply due to an administrative error by the employer, which could have easily been avoided.

Ultimately, it is your responsibility as an employer to ensure the staff responsible for completing right to work checks and maintaining employee records receive suitable training and guidance.

Lee Bartlett

About Lee Bartlett

Lee Bartlett is senior manager for law firm Fragomen Worldwide
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