Working Illegally: The Dangers for Employers
Hiring illegal workers in the United Kingdom can have serious consequences for both employers and employees alike. While the government is committed to maintaining a strong and fair immigration system, employers are expected to play their part in ensuring a legal and compliant workforce. Unfortunately, right to work and immigration laws are often a tricky course to navigate, and many employers have already fallen foul of the law in notable cases. Today, we discuss the potential problems that business owners face, and what you can do to avoid them.
Businesses at Risk: the Hazards of Hiring Illegal Workers
Employing workers without the right to work in the UK comes with the chance of civil penalty for the employer if they are unaware of the situation, but if they are, it becomes a criminal offence.
The current civil penalty for employing an illegal worker is a maximum of £15,000 per worker (if a first offence) or £20,000 (for repeat offences). Under new legislation, this figure is set to triple to a huge £45,000 and £60,000, respectively. That’s a massive increase of the cost under the new laws, which are set to come into force in 2024.
Meanwhile, if considered a criminal offense, employers risk both the fines above as well as imprisonment, business closure and disqualification from holding positions of directorship in future.
As such, it’s absolutely paramount for employers to stay on the right side of the law, especially in light of the new changes.
Hiring workers illegally can also severely damage an employer’s reputation. This can lead to loss of business, customers, and the trust of the public. Reputation damage is not easily repaired and can have long-lasting consequences for the company.
Exploitation and Unfair Treatment
Illegal workers are often vulnerable and can be subject to exploitation and unfair treatment, as they are afraid to report workplace violations. This is not only unethical but can also lead to legal trouble for employers involved in such practices.
As you can no doubt see, the potential ramifications for illegal hiring are far-reaching, even ruinous. So, the key question is: how can your business avoid this kind of fate and remain compliant?
Common Mistakes – And How to Avoid Them
Not Carrying Out Checks – Or Relying On Others To Do So
Perhaps the most basic step, but one which so many employers fail, is to accurately check an employee’s right to work. In order to defend against a civil penalty, an employer must have what’s called a ‘statutory excuse’. In other words, that you have done everything in your power to properly vet your employees.
To achieve this, business owners should conduct thorough checks on the documents of the prospective employee through the following methods:
A manual/physical check of either passport or birth certificate. Ensure you examine the original document, copies will not suffice. Once reviewed, create a photocopy, recording the check’s date and your name, confirming its authenticity and relevance to the applicant. Safely file the document for future reference. Additional checks for statutory excuse are unnecessary. Confirm the authenticity of the document and the photo’s resemblance to the individual.
A digital check of passport. To utilise this service, ensure the passport is valid. Seek assistance from an approved Identification Service Provider (IDSP) listed on the gov.uk website. Once the IDSP verifies the details, they will supply a right to work check for secure future reference, negating the need for additional checks. Be sure to acquire service costs from your chosen provider.
An online check is required in most cases. The applicant should be asked for a share code which they can obtain by using weblink: https://www.gov.uk/view-prove-immigration-status. Applicants with Biometric Residence Permit (BRP), Biometric Residence Card (BRC) or Frontier Worker Permit (FWP) MUST provide you with a share code; do not accept physical documents. Applicants also need to provide you with their date of birth.
It is no longer an option to complete a manual right to work check using a physical BRC, BRP or FWP. The employer must have the individual’s date of birth and a valid right to work share code that the individual has generated by accessing the online system for individuals. A share code is valid for 30 days.
With each method, it’s paramount to ensure that the employee has the necessary legal documentation from the beginning. This process can be done in the following three steps:
- Obtain the right to work documents as set out above and in accordance with the Home Office Checklist.
- Check the physical or virtual presence of the employee and ensure that the records match.
- Copy physical documents which are manually checked, and store any digital documents. In either case, do so safely and securely and in line with General Data Protection Regulations (GDPR). Remember to always date the copy so that you have an accurate time frame for all documentation.
Failing to Keep Records and Follow-Up
All too often, one of the things that catches employers out is having insufficient documents to prove their innocence. Ensure that all of your records are accurately and meticulously maintained, timed and dated so that if questions of compliance do arise you always have a paper trail to fall back on. Ignorance is no defence when it comes to the law, so this way you can be sure to have a strong foundation should complications occur.
In the same vein, remember that visas can always expire. As such, it’s imperative to perform regular checks rather than a simple ‘one and done’ approach. Studious record-keeping will allow you to perform this task with much greater ease.
Bear in mind, too, that the aforementioned statutory excuse extends for an additional 28 days from the expiration date of a current employee’s permission to remain in the country, which affords employers sufficient time to secure a Positive Verification Notice from the Employer Checking Service (ECS). This ’28-day period’ does not apply if checks were performed prior to initiation of the employment.
A Positive Verification Notice verifies that an employee currently possesses the legal right to work in the UK, and employers can use this to establish a statutory excuse for the period the Notice is valid. Conversely, a Negative Verification Notice indicates that the employee lacks legal rights to work in the UK.
Falling Behind the Times
Keeping on top of the current legislation is an absolute must. Ensure that HR personnel and hiring managers are well-trained in immigration and employment law, as well as you yourself as a business owner. Bear in mind that it is also possible that a fine can go to the individual that conducted the check, and not necessarily the employer, so it is imperative that everyone concerned remain up to date with changes in legislation to avoid unintentional violations.
Ignoring Advice – Or Failing to Seek It Out
It’s important to know your own limits as an employer or manager. The Employer Checking Service (ECS) is a free government service which can be used to request verification from the Home Office over whether an individual has a right to work in the UK. It’s most often used when an individual has an outstanding application or appeal and cannot present valid right to work documents as and when required.
If you’re keen on employing staff from elsewhere but concerned over their right to work, there is one answer which may avail all your needs: becoming a sponsor. To do so, you will require a sponsorship licence which entitles you to issue certificates of sponsorship to eligible employees who use this to obtain the right to work – typically a UK Skilled Worker visa, although others are available.
However, do note that sponsorship comes with its own attendant set of responsibilities, and that should you err in your practice, you can have your licence taken away.
Falling for Fraud
Another huge pitfall is, unfortunately, the surprisingly common practice of forged or fraudulent documentation. Even if you have carried out the correct checks, you may still be liable to pay a civil penalty if the employee’s documents are stolen or fake. You should also be vigilant of employee information which is incomplete, as this may hint at deception on their part, which you may also be liable for in certain circumstances.
Strategies for Dealing with Suspected Illegal Workers
Monitor, Audit and Report
Formalised processes for document checking and monitoring your staff are key to making sure that you have the most up-to-date and accurate information to hand. Audit these checks regularly and you stand the best chance of keeping your business above board. If you do suspect that your worker’s documents are not up to scratch, you should report to the Home Office immediately and terminate their employment following consultation with an employment law specialist.
You can also use the following link to help check documentation at any time: the Public Register of Authentic Identity and Travel Documents Online (PRADO).
Remind Employees of their Responsibilities
Clear policies such as terms in their contract of employment are designed to help share the responsibility of remaining compliant. Remember, employees, too, are to be held liable for keeping their own documents in check. As such, contracts should also include requirements for proof of right to work, and for them to be open and transparent with their status.
Take Considered Action Where Appropriate
If a prospective employee fails their checks, then the simplest course of action is to avoid hiring them. However, their case should also be dealt with circumspectly and with due consideration to avoid the risk of claims of discrimination. Employee rights are also paramount in this tricky area.
Hiring illegal workers can lead to severe ramifications for employers. It is vital that employers prioritise compliance with immigration laws and conduct regular right to work checks to protect their businesses and maintain a legal and ethical workforce. Investing in proper documentation, policies and training is just one step on the way to secure your business.
If you are concerned about whether or not your company might be at risk, or for professional, impartial advice, why not get in touch with HR:4UK’s dedicated team of knowledgeable experts on 01455 444 222 or email today.
James is our resident wordsmith and has many years of experience in writing about a huge variety of topics from HR to Occupational Health and beyond. He has been published in numerous magazines and news outlets, and especially enjoys researching and analysing the current trends in the modern business world.