The prevention of illegal working
February 26, 2008
On 29th February the provisions of Sections 15-25 of the Immigration, Asylum and Nationality Act 2006 come into force. These provisions have new obligations for employees recruited after this date.
The changes mean that there are new penalties for employers who employ illegal workers, essentially a possible fine of up to a maximum of £10,000 per illegal worker (this is double the previous fine). The purpose of the changes is to make it harder for illegal workers to remain in work, and easier for employers to ensure their employees are legally allowed to work in the position they have been selected for.
Employers who knowingly employ illegal workers will have no argument against this legislation, and in these cases there may be a penalty of two years’ imprisonment or an unlimited fine for a company director or manager who knew the worker was illegally working.
So what can employers do? The new Act allows employers to use a “statutory excuse” to defend any legal action as a result of employing illegal workers. To use this defence, employers must be able to show that initial checks on specified documents were carried out prior to the employment of the employee. Documents include a valid passport or birth certificate combined with a document indicating a UK National Insurance Number (e.g. P45). The type and number of documents needed depends on the level of entitlement to stay and work in the UK, and there are separate document lists for workers with permanent or temporary entitlement.
In addition to the legal issues surrounding employing illegal workers, employers are advised to consider the potential discriminatory issues relating to pre-employment checks. Only requesting documents from particular groups could lead to racial discrimination claims, as many workers from, for example, minority ethnic groups, are British Citizens. The best practice is to build the requirement for specified documents into the recruitment process and ask all applicants or successful candidates to provide the documents before employment starts. For example, the conditional offer letter could state that the offer is subject to satisfactory proof of eligibility to work in the UK, and provide a list of documents that need to be provided.
Full details of the requirements of the new provisions, including how to avoid discrimination, are specified in guidelines from the Border and Immigration Agency (BIA) entitled “Prevention of Illegal Working” and can be found here.
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