How to respond to the tougher regime on illegal working



And what to do if employees are discovered not to have a ‘right to work’

Employers in the UK now face harsher penalties for hiring illegal workers under the Immigration Act 2016. This includes not having proper processes in place to check when visas expire, and not carrying out ‘right to work’ checks following a TUPE transfer.

Previously, the Home Office had to show an employer actually knew an employee was working here illegally, but since July an employer who has reasonable cause to believe an employee is working illegally is committing an offence. The maximum penalties have also been raised to up to five years’ imprisonment and/or a civil penalty of £20,000 for each illegal worker.

Immigration is such a hot topic for the Home Office at the moment that employers need to take their responsibilities on this seriously and ensure they monitor and police their workforce effectively to stamp out illegal working. However, at the same time this needs to be balanced with a fair approach to employees, both to avoid discrimination and possible reputational consequences. Employers have a tricky tightrope to walk, and this will no doubt intensify during the Brexit process.

The Home Office has been specifically targeting certain ‘high risk’ sectors including care homes, catering and hospitality, and IT (other sectors will also be subject to scrutiny) so it’s essential that all employers have robust employment practices on the legality and immigration status of their employees. These should include carrying out the correct ‘right to work’ checks on all staff before they start work; tracking visa expiry dates; having a clear illegal working policy setting out a positive obligation for employees; and good HR and senior management collaboration on preventing illegal working. The policy should include an explanation on how to respond to Home Office spot checks.

At the same time, employers must ensure they do not slip into potentially discriminatory practice. They should:

  • ensure written procedures make clear that all applicants will be granted fair and equal treatment
  • carry out checks on all applicants, not just those where there may be an issue (for example because they are from an ethnic minority, were born abroad or speak with a ‘foreign’ accent)
  • treat employees with a time-limited right to work in the UK no less favourably than those with the right to remain
  • keep a job open to allow an applicant the opportunity to demonstrate his or her right to work (unless there is an urgent need to fill the position).

If someone in the workforce is discovered to be working illegally (this will inevitably happen to many employers), it is important to examine the evidence carefully and, if necessary, take legal advice to ascertain precisely what the immigration status is of the individual concerned as this is not always clear.

Unless it is immediately obvious there is no irregularity, the employee should be suspended so the situation can be investigated without the organisation being at risk of continuing to employ someone illegally. The employee should be sent a follow up letter explaining why he or she has been suspended.

Having taken legal advice, employers should consider reporting their suspicions to the Home Office, as actively co-operating with the department can help to mitigate a civil penalty and protect an organisation’s sponsor licence, if it has one, and can help ensure employers are dealing with employees fairly. At the same time, it is worth bearing in mind that overzealous co-operation with the Home Office can lead to bad publicity and could conflict with an employer’s duty of trust and confidence to employees.

Organisations are sometimes asked to call employees to a meeting with immigration officers without letting workers know the reason they are being asked to attend, as the burger chain Byron recently discovered. It should not be underestimated how difficult this can be. Emotions can run extremely high and a representative from HR should be on hand at all times to provide support and make follow-up arrangements in the fraught hours that may follow.

Terminating someone’s contract when his or her continued employment would be in breach of the immigration rules, is certainly a potentially fair reason for dismissal, but it is not an automatically fair reason, and so it is important to follow a fair process at all times.


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