New Regulations Double Maximum Penalty To £20,000 Per Illegal Worker

Employers need to be even more vigilant when hiring workers, warns an employment and business immigration law expert at Irwin Mitchell, following new regulations that increase the maximum financial penalty for illegally employing an immigrant who does not have the right to work in the UK from £10,000 to £20,000. Moreover if an employer knowingly employs an individual without the right to work in the UK, directors or managers in the organisation may find themselves facing criminal conviction and a fine or even jail.

The law firm warns that all employers are under a legal duty to prevent illegal working within their organisations and need to understand the steps they need to take to ensure that employees have the right to work in the UK. Primarily, employers must conduct specific right-to-work document checks and keep records in order to have any chance of defending an allegation of illegally employing an immigrant worker (a “statutory excuse”).

Employers often  ask new recruits to bring their passport or other right-to-work documents with them when they turn up for first day of work. However, this will not be enough to enable an employer to establish a statutory excuse. Right-to-work checks must be done before an individual commences employment. Offers of employment and employment contracts should also specify that a job is conditional on the employee having the right to work and providing proof.

In addition, when an employer inherits employees from another organisation, for example, on an outsourcing, or the sale of a business, it will also need to carry out right-to-work document checks. Employers now have a grace period of up to 60 days following the transfer of employees in which to conduct those checks.

The message to employers on their duty to prevent illegal working is clear but Irwin Mitchell warns that employers also need to take care to avoid falling foul of employment and anti-discrimination legislation. Right-to-work checks should be conducted universally across the workforce and employers should not target specific groups of employees on the assumption that they do not have the right to work in the UK, for example because they have foreign sounding names, or foreign accents; doing so could amount to unlawful discrimination claims in an Employment Tribunal. Additionally, if an employer automatically dismisses an employee who cannot immediately verify their right to work in the UK, for example when their visa expires during employment, without first investigating the situation, the employer could find itself facing claims in the Employment Tribunal for unfair dismissal and discrimination.

The law firm lists some of the things employers can do to protect themselves from legal sanctions which  include:

• Ensuring that staff responsible for HR and recruiting are trained on the legal obligations
• Incorporating suitable provisions into contracts of employment
• Implementing internal systems to monitor the expiry of employee visas and work permits
• Conducting an immigration audit to get up-to-date information about the workforce
• Making ‘right-to work’ enquiries when buying a business involving the transfer of employees
• Cooperating with enquiries and investigations by UK Visas and Immigration (the Government agency responsible for enforcing immigration law)