Legal Q&A: Complying with the prevention of illegal working regime

The Government tightened its position on illegal working in 2008, increasing pressure on employers to check the immigration status of new recruits and ensure all employees have a legal right to work in the UK. Solicitor Nisha Patel identifies how to tackle some of the challenges faced by employers when complying with the UK Border Agency (UKBA) prevention of illegal working regime.

Failure to comply with the obligations imposed under the prevention of illegal working regime can have serious consequences, including a civil penalty of up to £10,000 for each illegal worker employed, unless the employer has a statutory excuse because it has carried out the necessary document checks. An employer that knowingly employs an illegal worker will be committing a criminal offence for which the sentence could be up to two years’ imprisonment and/or an unlimited fine, in addition to the negative publicity and the damage to the organisation’s reputation.

Equally, where an employer has a UKBA sponsorship licence, non-compliance with the terms of that licence can result in its suspension or revocation.

Q. How can an employer be sure who can and who cannot be employed?

Before a new employee commences employment, an employer must undertake document checks on documents from “list A” or “list B”, in accordance with of the three-step process under the UKBA Prevention of illegal working guidance. Step one is to obtain the document; step two is to take reasonable steps to check that it is genuine; and step three is to take a copy of the relevant pages. The employer must do this in respect of each new employee, without fail, in order to ensure that the employee has permission to work. If it does this, it will have a statutory excuse if the employee does not have the legal right to work in the UK. Ensuring that these documents have been checked should form part of the company’s recruitment policy.

Employers are responsible for taking “reasonable steps to check that a document is genuine” (step two). Where employers are uncertain or have a concern that a document may be false it is advisable to take legal advice from an immigration solicitor.

Q. Does an employer need to carry out repeated documents checks?

Where the employee has provided documents from list B (documents that show a right to work for up to 12 months), in order to maintain a statutory excuse, the employer needs to carry out repeated checks (the three-step process in the guidance) at least once every 12 months or at the point of earlier expiry of the employee’s visa.

In order to keep track of when these checks need to be repeated and in relation to which employees, employers are recommended to keep a spreadsheet for their whole workforce and set up an automatic system to provide reminders in relation to “key dates” (such as visa expiry dates and/or 12 months checks) through the email calendar.

Q. What can an employer do to avoid a race discrimination claim?

Under the Equality Act 2010 it is unlawful to discriminate against employees or prospective employees on racial grounds, whether directly or indirectly. Indirect discrimination occurs when an employer imposes a condition, criterion or practice which places an employee or prospective employee (and others belonging to the same race) at a disadvantage compared to people who do not belong to that race. To avoid such claims, employers should provide clear written recruitment and selection procedures to all relevant staff and ensure all applicants are treated consistently and fairly at each stage of the recruitment process. Employees and prospective employees must not be in any way disadvantaged because of their race and the employer and its employees should avoid making assumptions about a person’s right to work or immigration status without checking the facts.

In bringing indirect race discrimination claims, employees can seek to rely on statistics that appear to show a bias against the ethnic minority in question, or ethnic minorities in general, for instance, any showing less than the expected level of diversity in the workforce. Employers of a certain size may therefore wish to monitor the ethnicity of its employees, job applicants and successful candidates in any recruitment and selection process. This may help identify whether or not there is a need to review the organisation’s recruitment procedures.

Q. What steps should be taken relating to employees who are transferring or have transferred under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE)?

Employers should conduct “appropriate document checks” in relation to any employees acquired through a TUPE transfer, within 28 days of the date of transfer. In the absence of guidance as to the meaning of “appropriate checks” for this purpose, it is highly advisable to ensure that the document checks carried out are the same as those carried out for all new employees.

Employees regularly have difficulties in satisfying their employer of their eligibility to work. Employers that are in doubt about this question may wish to take legal advice before dismissing the worker in question or confirming their employment, given the risks involved in either case.

Nisha Patel is an associate solicitor in the immigration law team at Russell-Cooke Solicitors

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