Legal Q&A: Employing foreign workers

Olympics fever has meant that 2012 has been a boom year for the number of foreign nationals working in the UK, particularly in London. But as supermarket giant Tesco faces a potential six-figure fine for illegally employing foreign students at one of its warehouses, businesses could perhaps be forgiven for being less than confident about employing non-UK nationals. Barrister Ben Williams looks at how employers can protect themselves.

Q What are the implications of employing illegal foreign workers?

Employing anyone illegally can be costly, with civil penalties of up to £10,000. Knowingly employing an illegal worker is also a criminal offence and the person responsible could face up to two years in prison and an unlimited fine.

Q Is it a growing problem?

Although it was most recently Tesco that was caught out employing illegal foreign workers, the practice of staff working longer than their visas allow is more common in the leisure sector. It is an issue that is beginning to emerge more frequently from retail outlets in major cities – especially those that employ foreign students.

Q How many hours are foreign nationals allowed to work in the UK?

Although some are automatically entitled to work on similar terms as UK citizens, others are restricted on how long they can work and in what capacity. Employers can ascertain any restrictions from a candidate’s documentation but, if in doubt, it is easy to request confirmation of an individual’s right to work from the UK Border Agency.

Q Which records and checks should we carry out when interviewing foreign workers?

Keeping good records and carrying out proper checks is the most sensible route for employers to take; start by asking all applicants to sign that they have answered all questions on the application form honestly.

Have a checklist in place for interviewing all foreign nationals and follow it rigorously. Begin by asking for both visual ID (passport) and a copy of all relevant work permits. Make sure that paperwork is genuine, check expiry dates and signatures, consider whether or not the photo matches and that the date of birth seems consistent with the person’s appearance. It is important to keep clear copies of all relevant paperwork and ID documentation. Online ID document-checking services can be helpful in this regard.

Q Can we not simply avoid employing foreign workers?

You are entitled to recruit the best candidates for a job, but nationality or ethnicity should not influence your decision. A blanket policy of “no foreign nationals” may lead to claims under the Equality Act 2010.

Q Do we need to do any regular checks?

It would be prudent to review all relevant documentation every six months, to carry out a full ID audit once per year and set electronic reminders for the expiration of all visas. It might seem simple but you’d be surprised at how easily you can forget.

Q How should we deal with illegal workers that have slipped through the net?

They should be reported to the UK Border Agency immediately. Only by taking a robust stance on illegal workers will employers be able to deter the culture from spreading.

Q Are there no grey areas?

In short, no. If a worker isn’t authorised then they are illegal. In the eyes of the law, ignorance is no excuse.

Ben Williams, barrister, Kings Chambers

Further information from XpertHR:

The XpertHR quick reference section lists the documents that are acceptable as proof of right to work in the UK:

FAQs on employing foreign workers

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