The arrival of the festive season is usually a time for merriment but for employers it brings with it the challenges involved with sourcing additional staff to meet increased consumer demand. As UK Visas & Immigration (‘UKVI’) continues its focus on creating a “hostile environment”, employers are under ever increasing pressure to ensure they do not employ illegal workers.
The enforcement officer is coming to town
As an employer, you should ensure that your employees have the right to work in the UK and are not disqualified from undertaking the employment you are offering. This should be done before their employment commences.
If you employ someone who does not have permission to undertake the work you are offering, you as an employer may be liable for a civil penalty. At present, the penalty amount varies according to when the breach took place.
• £15,000 per illegal worker for a first breach in a three year period; or
• £20,000 per illegal worker for a second or subsequent breach in a three year period.
You may also be guilty of an offence of employing an illegal worker where you had reasonable cause to believe that the worker was disqualified from employment due to their immigration status and could face an unlimited fine and/or a prison sentence of up to five years.
As the penalties are substantial, it is important to understand your immigration duties and obligations. Here are our top immigration and employment tips to consider when employing additional staff this Christmas.
The checks before Christmas
In the rush to hire additional staff at short notice it is easy for crucial right to work checks on any prospective employee to be forgotten. As stated above, these must be carried out before their employment commences. You should obtain original prescribed documents from either List A or B, examine the documents carefully in the presence of the holder (in person or via a live video link), take clear copies of the documents in a format which cannot be altered and record the date on which the check was made.
All I want for Christmas is you
At all times, all job applicants should be treated fairly and in the same way throughout your recruitment process. You should base selection purely on merit and only consider right to work issues at the last stages of selection. You should not make assumptions about a person's right to work in the UK on the basis of their colour, nationality, ethnic or national origins as this could result in race discrimination claims.
‘Rockin’ around employing students
If you employ international students, you should carefully check their visas for any restrictions on their right to work.
Those students with a limited right to work during term time, must provide you as their prospective employer with one of the permitted forms of evidence to confirm their academic term and vacation times for the duration of their studies in the UK.
It is advisable that you also check if the students are working for anyone else as this may impact their ability to work for you.
O come all ye volunteers
If you consider recruiting volunteers to assist your business in the lead up to Christmas, you must ensure that they are subject to immigration control, they are permitted to undertake ‘voluntary work’ in the UK.
As the ‘workforce’ of any organisation may include volunteers, you should ensure that you conduct right to work checks on all potential employees, including any un-paid workers who could be considered ‘voluntary workers’ under the immigration rules.
You should also ensure you understand the National Minimum Wage (‘NMW’) provisions which provide an exemption to the requirement to pay the NMW for voluntary workers, providing they receive no payment other than reimbursement of expenses genuinely incurred in the performance of their duties.
Closing down for Christmas
From 1 December 2016, UKVI will have the power to shut down a business for up to 48 hours where that business has been employing illegal workers and has either (i) been convicted of an illegal working offence, or (ii) during the period of three years ending from the date on which an illegal working closure notice is issued, received a civil penalty, or (iii) has at any time been required to pay a civil penalty and failed to pay it. This could have severe implications on businesses during the Christmas rush.
If you require any further information in respect of the issues raised in this article, please contact Chetal Patel, a Senior Associate (for immigration enquiries) or Louise Rea, an Associate (for employment enquiries).
Posted on 25/11/2016 in Legal UpdatesBack to Knowledge